Pennsylvania Judicial Elections

Pennsylvania now elects judges on a statewide ballot, the legislature is considering electing them by district instead, the Philadelphia Inquirer reports.

Republicans hold majorities in the legislature and, @jbaernews writes, "Republican leaders were, and likely remain, apoplectic about the Democratic-controlled state Supreme Court, which in 2018 ruled legislatively drawn congressional districts unconstitutional and replaced them with new districts, which helped add more Democrats to the U.S. House."

The bill is opposed by the Pennsylvania AFL-CIO

Trial and Appellate Judges Should be Selected by Different Methods

Tailored Judicial Selection is Maine Law Professor Dmitry Bam's new article in the University of Arkansas at Little Rock Law Review.

The abstract says in part:

"approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary.

But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection."

I agree, and thank Prof. Bam for quoting Stephen J. Ware, Originalism, Balanced Legal Realism and Judicial Selection: A Case Study, Kan. J.L. & Pub. Pol'y, Spring 2013, at 165, 181: "The political/lawmaking side of judging looms larger, the higher the court. In other words, the extent to which (inevitable) judicial lawmaking allows judges to inject their political views into law rises, the higher the court. Trial judges play less of a lawmaking role than appellate judges, especially supreme court justices, simply because court systems are hierarchical and trial courts are at the bottom. The legal rulings of trial courts can be reversed, de novo, by appellate courts. In contrast, appellate courts are often the final word, as a practical matter, on issues of law."

Ohio Supreme Court Appointment Makes Court All Republican

Ohio Gov. John Kasich named Judge Mary DeGenaro to complete the 11 months left in the term of  Justice William O’Neill, a Democrat, who is running for governor.

According to the Toledo Blade, this will mean each member of the Ohio Supreme Court is a Republican.

The Case for Partisan Judicial Elections

Professor Chris Bonneau of the University of Pittsburgh ably makes the case for partisan judicial elections.

"Massive Changes" to North Carolina Judicial Selection?

A special committee of the North Carolina Senate is "looking at whether to propose massive changes to the state's judiciary" according to the Associated Press.

North Carolina judicial elections have been controversial and some testimony "backed altering the state's current method of selecting judges, offering options to legislators focusing more on appointments and confirmations and less on current head-to-head elections."

University of North Carolina law school dean Martin Brinkley said "he personally backs a method mimicking the selection of federal judges — executive branch nominations then subject to legislative confirmation."   I agree.

Partisan Judicial Elections in North Carolina

North Carolina changed its trial judge elections from partisan to non-partisan in the 1990's. Now it is returning to partisan elections. Republican legislators supporting partisan elections overrode the veto of the Democratic governor.

Ohio Supreme Court Elections Leave Republicans in Control

Republicans won all three elections to the Ohio Supreme Court this year. "Republicans retain control of the state’s high court by a 6-1 margin", according to the Toledo Blade.

Democrats Win Penn. Supreme Court With Money From Unions and Trial Lawyers

The Daily Call reports two of three open seats "were open because of the resignations of disgraced former justices: in 2013, a Republican convicted of using her taxpayer-paid staff to do political work and, in 2014, a Democrat implicated in the porn email scandal. The other seat became vacant when former Chief Justice Ronald Castille was forced to step down last year after reaching the mandatory retirement age of 70."

All three seats on the Pennsylvania Supreme Court went to Democrats after six years Republicans  controlling the court. "The Democratic takeover was fueled by cash provided largely by organized labor and Philadelphia trial lawyers to help sustain TV advertising. Of the record $11.5 million contributed to the seven candidates, Democrats raised three times as much as the Republicans." The Daily Call reports.

The Atlantic's Tyler Bishop bemoans the Pennsylvania Supreme Court's politicization and scandal, but points out "allowing citizens to directly elect judges makes the process more democratic, allows people to engage key issues before the court, and holds judges accountable for their interpretations of the law."

New York Judicial Elections

“To say it is an election is a joke,” The Wall Street Journal quotes  Michael Cardozo, who served as New York City’s chief legal officer under former Mayor Bloomberg. He's talking about Democratic Party delegates voting to nominate their party's candidate for a judgeship in the Bronx, in which the Democrat "is all but assured the seat in the [general] election because the Bronx is overwhelmingly Democratic."

Several years ago the Second Circuit found New York's judicial election system unconstitutional but the Supreme Court reversed.

As the US Supreme Court explained:

The Supreme Court of New York is the State’s trial court of general jurisdiction, with an Appellate Division that hears appeals from certain lower courts. ...

Over the years, New York has changed the method by which Supreme Court Justices are selected several times.Under the New York Constitution of 1821, Art. IV, §7, all judicial officers, except Justices of the Peace, were appointed by the Governor with the consent of the Senate. See 7 Sources and Documents of the U. S. Constitutions 181, 184 (W. Swindler ed. 1978). In 1846, New York amended its Constitution to require popular election of the Justices of the Supreme Court (and also the Judges of the New York Court of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI, §12). In the early years under that regime, the State allowed political parties to choose their own method of selecting the judicial candidates who would bear their endorsements on the general-election ballot.See, e.g., Report of Joint Committee of Senate and Assembly of New York, Appointed to Investigate Primary and Election Laws of This and Other States, S. Doc. No. 26, pp. 195–219 (1910). The major parties opted for party conventions, the same method then employed to nominate candidates for other state offices. Ibid.; see also P. Ray, An Introduction to Political Parties and Practical Politics 94 (1913).

In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees(and most other nominees who did not run statewide) through direct primary elections. Act of Oct. 18, 1911, ch. 891, §45(4), 1911 N. Y. Laws 2657, 2682. The primary system came to be criticized as a “device capable of astute and successful manipulation by professionals,” Editorial,The State Convention, N. Y. Times, May 1, 1917, p. 12,and the Republican candidate for Governor in 1920 campaigned against it as “a fraud” that “offered the opportunity for two things, for the demagogue and the man with money,” Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to select their candidates for the Supreme Court by a convention composed of delegates elected by party members. Act of May 2, 1921, ch. 479, §§45(1), 110, 1921 N. Y. Laws 1451, 1454, 1471.

New York retains this system of choosing party nominees for Supreme Court Justice to this day. 

Judge Rated Low by Bar Wins GOP Primary: Surprising Pennsylvania Supreme Court Election?

In the Pennsylvania Supreme Court Republican primary a candidate, Judge Anne Covey,  rated “not recommended” by the Pennsylvania Bar Association defeated Justice Correale Stevens who the bar rated “highly recommended,” Malia Reddick points out. Previously, Covey called the judicial-evaluation process of the Pennsylvania Bar Association as "unethical, unprofessional, and less than forthright," according to The Philadelphia Inquirer.

Three seats on the court are open in the general elections this November. The GOP candidates (who each won the May primary) are Anne Covey, Michael George, and Judith Olson

The Philadelphia Inquirer discusses campaign contributions.

Pennsylvania Supreme Court Elections After Scandals

Three seats on the Pennsylvania Supreme Court are up for election this year and the candidates were recently selected in Democratic and Republican primaries. Melissa Daniels writes "Two of the seats opened when justices stepped down amid scandals — Joan Orie Melvin of Marshall on the heels of corruption charges, and Seamus McCaffery of Philadelphia because of inappropriate emails unearthed on state servers." The third opening is a result of the mandatory retirement of former justice Ron Castile when he turned 70.

North Carolina Judicial Elections May Become Partisan

Elections for North Carolina appellate court judgeships have been officially nonpartisan since 2004, but AP reports that Republicans are trying again to shift them back to partisan races. The North Carolina "House tentatively agreed Thursday to legislation to require state Supreme Court and Court of Appeals candidates run with their party affiliation on the ballots."

West Virginia Judicial Elections Drop Party Labels

Gov. Earl Ray Tomblin has signed House Bill 2010, which requires the elections of justices of the West Virginia Supreme Court, circuit court judges, family court judges and magistrates to be nonpartisan and by division.

Former Chief Justice of Alabama "Disgusted" by What She Had to Do to Get Elected

Sue Bell Cobb writes in Politico "I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted."

Justice Cobb's article entitled "I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There: How money is ruining America’s courts" says

"In Alabama, would-be judges are allowed to ask for money directly. We can make calls not just to the usual friends and family but to lawyers who have appeared before us, lawyers who are likely to appear before us, officials with companies who may very well have interests before the court. And I did."

Justice Cobb: "When a judge asks a lawyer who appears in his or her court for a campaign check, it’s about as close as you can get to legalized extortion. Lawyers who appear in your court, whose cases are in your hands, are the ones most interested in giving. It’s human nature: Who would want to risk offending the judge presiding over your case by refusing to donate to her campaign? They almost never say no—even when they can’t afford it."

Bringing back memories of when I lived in Alabama, Justice Cobb mentions the notorious TV ad portraying the opposing judicial candidate as a skunk. I wrote about Alabama judicial elections, in  Money, Politics and Judicial Decisions

Unfortunately, Justice Cobb does not highlight the lawmaking role of state supreme court justices, and instead says they’re "supposed to apply the settled law against the facts and evidence of the case before their court." That sounds more like a trial court. The state supreme court has lots of discretion in making the law "settled" in one direction or another so lower courts can then apply it. It's that lawmaking role of supreme courts that justifies a democratic form of judicial selection, rather than what Justice Cobb calls "merit selection."

West Virginia Switches From Partisan to Non-Partisan Judicial Elections

According to Bill Raftery, West Virginia's legislature voted to "move the state to nonpartisan judicial elections at all levels" making it "the fourth state to move from partisan to nonpartisan elections in the last twenty or so years:

• Arkansas: In 2000 voters approved Amendment 80, a rewrite of the state’s Judiciary Article, which included nonpartisan elections for judges.
• Mississippi: Most state courts were moved to nonpartisan elections under the 1994 Nonpartisan Judicial Elections Act; Justice of the Peace Court races remain partisan.
• North Carolina: The state’s courts were moved to nonpartisan ballots in a piecemeal fashion: Superior (1996), District (2001), and finally the Court of Appeals and Supreme Court (2002)."

Bills to Change Kansas Supreme Court Selection

As reported in today's Lawrence Journal World. Three bills: lowering judicial retirement age and either judicial elections or "federal model" senate confirmation.

This article errs in referring to Kansas Bar Association when it should say Kansas Bar (not all members of the bar in the association and vice versa).

New Mexico Judicial Selection

According to the Albuqurque Journal:

House Judiciary Chairman Zachary Cook, R-Ruidoso, has introduced House Joint Resolution 11, which would ask voters to amend the state constitution to eliminate partisan elections of judges. It would not apply to magistrates and justices of the peace, but would apply to state Supreme Court justices, and Court of Appeals, District Court and Metropolitan Court judges.
Currently, judges in those four courts are appointed by the governor from lists of candidates selected by a bipartisan nominating commission chaired by the dean of the University of New Mexico School of Law.
Then, however, they must run in one partisan election, where they often face an opponent who has avoided the vetting of the nominating commission.
After that, judges face only nonpartisan retention elections. Voters in those elections have the benefit of reviews by the Judicial Performance Evaluation Commission.
Cook’s resolution eliminates the partisan election step, which is a major flaw in a merit system.

New Mexico Judge Alan Malott writes:

in the late 1970s, New Mexico elected its judges through ordinary partisan elections. Not surprisingly, the dominant political party produced most of the sitting judges statewide. In 1988, voters approved a constitutional amendment that substituted a hybrid system for purely partisan elections.

This system provides that a judge is initially appointed by the governor, after being screened by a bipartisan nominating commission. But the judge must take on all comers in the next general election cycle, often only a few weeks or months after his or her appointment.

If successful in that partisan contest, the judge is subject to nonpartisan retention elections every six years and remains in office if 57 percent of the voters want to keep them there.

Publicly-Financed Judicial Campaign in New Mexico

The Albuquerque Journal reports the first Republican to be elected to a state appellate court in 12 years is also the first publicly financed candidate to be elected to an appellate court since public financing became available to statewide judicial candidates in 2008.  It was the first time both candidates in a contested appellate court race opted to fund their campaigns with public rather than private dollars.  "Only candidates in partisan elections for the appellate courts are eligible for public financing. Not eligible are judges who have been previously elected and are running in retention elections, in which voters cast “yes” or “no” ballots on keeping them on the bench."

Montana Supreme Court Election Most Expensive on Record

The NY Times reports on the "most expensive judicial race on record in Montana."  According to the Times, "conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity".  "In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000."

The big picture: "Corporate interests, who say they are trying to preserve jobs and create growth, and trial lawyers, who say they represent the voiceless against the wealthy and powerful, have long gone head to head in judicial elections."

Unconstitutional Judicial Selection in Indiana?

The Indy Star reports that a federal court ruled the state law governing how judges are elected in Marion County is unconstitutional.  Apparently, the Republican and Democratic parties each nominate half of the candidates eligible to sit on the court so candidates appearing on the general election ballot are almost sure of victory.

Unfortunately, the only alternative to this system discussed in the article is the Missouri Plan, which the article uncritically calls "merit selection."