More on the Pennsylvania plan to create partisan judicial elections by district

I was pleased to weigh in this week on the proposed Pennsylvania legislation that would shift partisan elections for its state supreme court from a statewide ballot to a regional one. (More on the proposal here and here.) As the Spotlight PA article suggests, my concern is not with creating geographic districts, but rather with the potentially explosive mix of districts and partisan races. That combination seems to me to especially invite special interest and dark money, similar to the notorious 2004 supreme court election in Illinois.

Interestingly enough, South Carolina is also considering a move to expand and diversity the geographic perspective of its supreme court, which is chosen entirely by the legislature. We’ll continue to follow both proposals here.

Texas commission recommends move to nonpartisan judicial elections

The fifteen-member Texas Commission on Judicial Selection has issued a formal report recommending that the state move away from partisan judicial elections in favor of nonpartisan elections. A bar majority of the commission members — eight — supported the change. But since most dissenters are state legislators, it seems unlikely that the commission’s recommendations will be followed anytime soon.

The Texas Tribune has an excellent summary and analysis here. A snippet:

“I do not believe the citizens, my constituents of the state of Texas, want this right taken away from them, and I’m not gonna be in a position or be the one who does that,” state Sen. Joan Huffman, R-Houston, said at the committee’s final meeting in December. Huffman, who served as a trial judge in Houston, and said the experience of campaigning for the bench had been valuable.

The counterargument to that came most persuasively from former judges, who have been pointing out for years that while Texans say they cherish their ability to elect judges, they typically have little idea who they’re choosing between.

In Houston, for example, there are dozens of judges on the ballot, lists long enough that even top local attorneys struggle to familiarize themselves with every candidate.

In the absence of better information, voters often turn to the demographic clues they can glean from the ballot itself. In this year’s Democratic judicial primaries, for example, female candidates got more votes than male candidates in every gender-split race, about 30. And in Republican primaries, judicial candidates with Hispanic-sounding surnames have often fared poorly, owing, experts say, to a largely white electorate.

“Judges can be elected even though no one knows who they are,” pointed out Wallace Jefferson, who was the first Black chief justice of the Texas Supreme Court. Instead of vetting the qualifications of the judicial hopefuls they are choosing between, he said, voters often choose based on party affiliation, “or they vote based on the sound of your name.”

 

Electoral chickens come home to roost in North Carolina courts

Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.

The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.

There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).

So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).

Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.

 

Sitting Alabama justices endorse candidate in upcoming partisan primary

Here is something I have never seen before. Seven sitting and former justices of the Alabama Supreme Court publicly endorsed Chief Justice Lyn Stuart in this week’s upcoming Republican primary. Stuart replaced former Chief Justice Roy Moore after he was suspended in 2016; she is now seeking a full term.

There are a number of unusual circumstances here. Stuart stepped into a difficult position after the Moore suspension, and obviously won the support of her colleagues. And her opponent, Associate Justice Tom Parker, is a close associate of Moore. It is likely good politics to place the more moderate Stuart in the partisan general election against a Democratic challenger. Parker seems to be a mini-Moore when it comes to inciting controversy.

But this is still a highly unusual move. Judges generally stay away from political endorsements or similar activity, for fear of comprising their legitimacy as nonpartisan arbiters of the law. Moreover, the the sitting justices here chose between two colleagues on the bench. That will make for an awkward summer around the courthouse. And what if the Democratic candidate wins the general election? (Unlikely in Alabama, but we know it can happen.)

Partisan elections places judges and judicial candidates in countless compromising positions. Here is another piece of evidence to that effect.