Judicial selection is a historically sleepy affair for many states. Once characterized as "about as exciting as a game of checkers ... [p]layed by mail," (1) non-partisan judicial elections involving unopposed incumbents seeking reelection seldom attracted much attention either from the media or voters. (2) With limits in many states on what candidates could say, as a result of judicial or legal canons, voters knew little about those running for office. (3) The result was elections often devoid of debate or information that may be instructive to voters. (4) In a handful of states, however, including Texas, judicial selection is partisan, raucous, expensive, and hotly contested. (5) For those fearing the worst of what a politicized state court system could be, Texas is an anomalous nightmare ... or is it?
As a result of two court decisions in Republican Party of Minnesota v. White--the first by the United States Supreme Court (hereinafter White), (6) and the second by the Eighth Circuit Court of Appeals (hereinafter Republican Party of Minnesota) (7)--the next round of state judicial elections in Minnesota, New York, and elsewhere could include not just candidates seeking party endorsements but also soliciting contributions and announcing positions. (8) As a result, the future of many sleepy judicial elections may look increasingly more nightmarish like Texas.
This article examines the future of state judicial selection in light of the two Republican Party of Minnesota v. White decisions. Specifically, it explores what options states, especially those having non-partisan judicial races, now have to promote judicial independence whether they wish to stick with an elected court system or move towards another means of selecting judges. Part I of this article examines the politics of judicial selection. Specifically, it examines the different types of state judicial selection methods and assesses whether they make a difference in terms of who sits on the bench and how cases are decided. Part I also examines the experiences that states have had with partisan elections. It concludes by examining the reasons for recent trends towards the politicization of state judicial campaigns.
Part II shifts to an examination of the two Republican Party of Minnesota v. White decisions. This section attempts to first describe judicial selection in Minnesota prior to the White decisions and set the context for the litigation in the cases. The remainder of Part II provides a detailed analysis of the two decisions.
Part III of the article shifts to exploring what options states have for judicial selection in light of the two White opinions. The first part of this section will ask whether the White opinions should be read narrowly as only prohibiting some types of regulation of judicial campaigning and speech or whether they should be read more expansively signaling that judicial elections and campaign speech should be seen as no different than other races for competitive office. To help clarify the impact of the White opinions, examination of their treatment in subsequent disputes by other courts shall be examined. Finally, this part of the paper concludes with what options there are to "fix" judicial selection--be it with elections or an appointment process--in light of the White opinions.
Overall, the argument of this article is that the two White opinions should be read broadly as significantly offering judicial campaign speech the same First Amendment protection as afforded rhetoric in other competitive races. If states fear that competitive judicial campaigns where candidates announce their positions affiliate with political parties and other groups or solicit political contributions are a threat to judicial independence, then there is little they can do so long as elections are used to select judges. Instead, as both the Supreme Court and the Eighth Circuit declared, the turn to elections to select judges forfeits judicial independence for public accountability. …