Carnegie Reporter, Vol. 3, No. 4 | Judicial Elections Still Fair and Balanced? page 2

Electing Judges: The Intention Was Reform
The revolving judges in the Tom DeLay case directed a spotlight on the problem of partisan involvement in judicial elections. The first Texas judge selected to try his case, Judge Bob Perkins, had a documented record of partisan involvement. He had made 30 reported contributions in recent years totaling $5,255 to Democratic candidates and organizations, including $200 to MoveOn.org. The senior judge decided that was enough to remove Perkins from the case.

Next chosen, Republican Judge B. B. Schraub, also had a record of contri-butions totaling $5,600 to several Republican candidates, and he removed himself. His successor, Texas Supreme Court Chief Justice Wallace Jefferson, removed himself too. Jefferson had the same campaign treasurer and fundraiser as DeLay’s Texans for a Republican Majority Political Action Committee and had accepted large donations from organizations named in the indictment.

This “judicial carousel,” as the Austin American-Statesman called it, ended when both sides settled for a semi-retired San Antonio district judge, who seemed reasonably unbiased. He is a Democrat who had contributed only $150 each to three Democrats in recent years. “That’s it, I’m a tightwad,” Judge Pat Priest stated.

Above: Judge Bob Perkins
Inset: Congressman Tom Delay (R-TX)

Despite the recent notoriety, there is little new about judicial elections. In fact, they were considered reforms in pre-Civil War America. The first 29 states to enter the union adopted the federal model of appointed judges, following English law and the belief of the framers of the Constitution that this would ensure an impartial and independent judiciary. In the Federalist Papers, Alexander Hamilton, James Madison and John Jay argued that elected judges would succumb to popular whims and not follow the requirements of the law.

However, the movement to democratize politics and society that propelled Andrew Jackson into the presidency in 1828 helped to spread the idea of elected judges to the states, beginning with New York’s adoption of partisan elected judges in 1846. It received broad support, based on the concern that appointed judges were unaccountable to the wishes of the public, in keeping with the growing popular dislike of elites of all sorts. By 1860, most states—and every new state admitted to the union by then—had adopted such a system.

Neither is there much new about criticism of this system. “Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench,” Roscoe Pound told the American Bar Association (ABA) in 1906 when he was a Nebraska law professor.

Reforms advocated by the ABA since then moved many states toward some form of appointment of judges, or merit selection, combined with elections, particularly retention elections after initial appointment. This resulted in a patchwork of systems that combine appointment, usually by governors, and popular election.

As summarized by the American Bar Association, six states have partisan elections for Supreme Court justices, and two more have nonpartisan elections but parties are involved in nominating and endorsing candidates. Another thirteen have nonpartisan elections, but parties often support candidates directly; seventeen have uncontested retention elections, and twelve grant life tenure or reappointment.

The selection system varies even more for lower state court judges.

Of the thirty-nine states with intermediate appellate courts, five have partisan elections, twelve have nonpartisan elections, fourteen have uncontested retention elections after initial appointment and eight grant life tenure or use reappointment of some type for their intermediate appellate courts. The breakdown is similar for selection systems for trial courts of general jurisdiction (see sidebar).

Even all this does not accurately describe how judges get selected. For example, “It has become common in many states for judges to retire before the end of a term, which provides the governor with an opportunity to make an interim appointment,” the American Judicature Society (AJS) reported. Its recent survey in 11 states with elected judges found that more than half of them first took office by appointment because of this common practice. “The selection of judges in states requiring election is thus not simply a pure electoral process, just as merit selection systems are not a purely appointive process,” the AJS concluded.

Perhaps the greatest irony about public support for electing judges—hovering around 80 percent by many surveys—is that the public knows little about the judicial candidates they insist on electing. Only 13 percent of Americans reported in 2001 that they knew enough to vote in a judicial election, according to a national survey conducted for the Justice at Stake Campaign.

Partly to blame are long ballots with numerous contests for judicial seats in many elections. For example, in Cook County, Illinois, the 2004 ballot featured 84 trial court judge candidates. On such ballots, one analysis of judicial retention races showed, 30 percent of those who voted at the top of the ticket failed to vote at the bottom for judges up for retention, a phenomenon called “roll off.”

As one Texas newspaper columnist put it, “In most large urban counties, and most appellate courts, most voters wouldn’t know their judges if they came up and bit them.” Judicial candidates with “nice” names such as Johnson tend to do well, another observer pointed out. Conversely, candidates on the wrong side of popular resentment over unrelated issues can fare poorly.

For example, Pennsylvania Supreme Court Justice Russell Nigro in 2004 became the first high court judge to lose a retention election ever in that state, apparently because of public anger over a questionable pay raise that state legislators had voted for themselves. Nigro and Justice Sandra Schultz Newman were the only statewide officials on that November ballot—and thus took the brunt of that anger. Newman won retention, but only with 54 percent of the vote.

The paradox of public insistence on electing judges but lack of awareness of judicial candidates is the result of what law professor Charles Gardner Geyh of Indiana University calls the political reality of the “Axiom of 80.” He asserts that some 80 percent of the public support electing judges, that some 80 percent do not vote in judicial elections, that some 80 percent cannot identify the candidates for judge, and that some 80 percent believe that elected judges are influenced by campaign contributions. (Professor Geyh emphasizes that his percentages are approximate.)

Next page: Political parties in many states have long been involved in selecting judges, either appointed or elected.

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