The Party on the Bench: Partisanship, Judicial Selection Commissions, and State High-Court Appointments
McLeod, Aman, Justice System Journal
This study explores how different institutional configurations affect the impact that partisan considerations have on gubernatorial appointments to state supreme courts. It does this by examining how the incidence of cross-party appointments is affected by various institutional variables. Most significantly, the results show that governors typically appoint judges who are members of the same political party, but that the probability of a cross-party appointment increases if the state uses a judicial nominating commission and if an opposition party controls the body that must confirm the nomination.
Since the early 20th century, many observers of the judiciary have been concerned about the impact of partisan politics on the judicial selection process. At that time, most state judges were chosen by the people in partisan elections (American Judicature Society, Judicial Selection in the States), but critics claimed that the heavy involvement of political parties in the judicial selection process had eroded popular respect for the judiciary (Krivosha, 1990). Well-known individuals of that era, such as Roscoe Pound and William Howard Taft, denounced judicial elections, and backers of the political reform movement known as progressivism decried the involvement of political parties in the judicial selection process (Krivosha, 1990).
At that time, the epicenter of the movement for the reform of state judicial selection was the American Judicature Society (AJS), which was founded in 1913. Scholars and attorneys associated with the AJS championed a number of reform proposals that focused on doing away with partisan and nonpartisan judicial elections in favor of gubernatorial appointment of judges. Most of the proposals were designed to limit the influence of politics in the judicial selection process by requiring the governor to fill judicial vacancies from a list of candidates that had been approved by a commission tasked with reviewing the qualifications of applicants (Krivosha, 1990).
In 1940 Missouri became the first state to enact the judicial selection reforms advocated by the AJS, following a groundswell of public indignation about the level of influence that the state's political parties enjoyed in choosing judicial candidates (Krivosha, 1990). Today, thirty-two states use this system for either interim or initial selection of judges at the trial or the appellate level (American Judicature Society, 2008). The composition of these commissions varies from states to state, as does the method for choosing the commissioners. For example, most commissions are composed of lawyers, nonlawyers, and one or two judges, but some have no judges, and a few are composed only of lawyers. Furthermore, the power to appoint the commissioners is typically divided among the governor, state legislature, state bar, and judiciary, although there is great variation among the states in exactly who has the power to appoint what proportion of the commissioners and in the size of the commissions. Some states also use different commissions to fill vacancies on different courts. In most states, commissions submit three to five names to the governor, one of whom must be appointed to the vacant seat on the court, although some states require legislative confirmation of the appointment (American Judicature Society, 2008).
Supporters of commission-based selection systems have lauded them for reducing the influence of partisan politics in the judicial selection process and for improving the quality of the judiciary in states that have adopted these systems (e.g., American Judicature Society, "Merit Selection: The Best Way to Choose Judges," n.d.; Krivosha, 1990; Sutro, 1967; Behrens and Silverman, 2002; Cady and Phelps, 2008). Boatright and Esterling (1999) looked at the claim that the use of selection commissions enhances the quality of the judiciary and concluded that the inherent subjectivity of any definition of judicial quality means that studies of judicial quality across different selection systems are of little theoretical or normative value. …