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Could Politics Make Courts A Sidekick Branch Of Government?

By Aebra Coe | April 28, 2019, 8:02 PM EDT

Across the country, lawmakers are trying to alter how the judges in their home states are selected, crafting a wave of legislation this year that critics say will undermine the integrity of what’s supposed to be a politically independent branch of government and, with it, the rule of law.

Experts say those efforts in states such as Missouri, Iowa and South Carolina have materialized largely along partisan lines.

A proposed amendment to the Missouri Constitution, for example, would eliminate its independent judicial selection commissions in favor of appointments by the governor, with confirmation by the state Senate, both of which are currently controlled by Republicans.

The Missouri bill is likely the result of conservative lawmakers’ frustration with state Supreme Court decisions they deem too liberal, including one on a local minimum wage provision, according to Douglas Keith at the Brennan Center for Justice at New York University Law School.

That legislation is among 16 bills introduced this year that would change how state court judges are selected, according to tracking by the Brennan Center as of March 25. Of those bills, six create a partisan advantage in judicial selection, six would make judicial selection more political, and four would weaken or eliminate judicial nominating commissions, the organization has said.

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“It’s an effort by elected officials, partisan officials, to gain a leg up in the courts,” Keith said. “It is a shortsighted effort to gain an advantage without a recognition that states are better off in the long run if courts can stay somewhat insulated from the other branches of government.”

American Bar Association President Bob Carlson also sounded the alarm with regard to politically motivated changes to judicial selection following the release of a Brennan Center report earlier this year.

“Both judicial decisions and the process by which judges are selected must transcend political partisanship,” Carlson said in a statement. “The ABA calls on state legislatures to respect the independence of the judicial branch and end efforts to politicize the judicial process.”

Research suggests that methods for selection matter and can impact the ultimate ideological makeup of a bench.

A 2017 study by Vanderbilt Law School professor Brian Fitzpatrick found that judicial appointment by selection commissions and non-partisan elections lead to a more left-leaning court, while partisan elections and appointment by elected officials lead to a more right-leaning court.

Conservative organizations like the Heritage Foundation have decried a rise of what they call judicial activism in recent years when judges have sided with progressive causes such as abortion rights or gay marriage. And, as a number of state legislatures have turned red, criticism by those lawmakers of state courts often appears to hinge on allegations of perceived liberal bias.

In 2017, a Republican leader of the Missouri Senate, Ron Richard, said publicly that the state Supreme Court had “gone rogue” when it upheld a decision by the city of St. Louis to increase its minimum wage to $10 an hour.

The state’s judicial nominating commissions — of which there are six — are currently made up of the district’s chief judge, two lawyers elected by members of the state bar, and two nonlawyers appointed by the governor. The commissions select three nominees to offer up to the governor for a single appointment.

In addition to the currently pending legislation that would dismantle the commissions, a second bill is pending in Missouri that would keep the commission, but limit its role in judicial selection to determining whether each applicant for a judgeship is qualified.

Similarly, in South Carolina, a bill is pending that would pare back the authority of that state’s judicial selection commission, putting more power in the hands of elected officials.

Sponsors of the bills in Missouri and South Carolina did not respond to a request for comment.

In Iowa, a bill would remake the state’s independent nominating commissions, removing eight commission seats selected by members of the state bar and one seat reserved for a state Supreme Court justice, replacing them with commissioners nominated by members of the Legislature. Eight commissioners elected by the governor would remain in place.

The bill’s sponsor, Iowa House Rep. Steven Holt, says that it was in no way inspired by any one court decision and was instead the result of his belief that a “tiny group of lawyers appointing other lawyers” to these commissions is “inappropriate.”

Instead, the Republican said, elected representatives who are accountable to voters should be the ones making these decisions.

“This gives greater voice to the people and provides a measure of oversight by the people that is nonexistent in the present system, in which attorneys are appointing other attorneys with no additional approval process or oversight,” Holt said. “In many cases, this system has degraded into a popularity contest that has little to do with merit, as was originally intended.”

Bills in other states would give legislators the power to reject state bar judicial appointees, put party labels on the ballot for judicial elections, and increase the frequency of retention elections for judges, according to the Brennan Center.

Legislative efforts to rein in judicial power have manifested in different ways over the years, said William Raftery, a senior analyst at the National Center for State Courts.

Those efforts have ranged from jurisdiction stripping to impeaching judges for unfavorable opinions. But in recent years the most popular method has been to alter the judicial selection process.

In some states, there is a notion that lawmakers can “create courts” and that they should be treated like an arm of the legislative branch, he said.

“It ultimately boils down to this: The courts are not looked on by some legislators as being an independent branch of government,” Raftery said. “For some, they’re looked on as an agency that needs to be brought to heel.”

The danger of that viewpoint, taken to its extreme, is that it threatens to upend a U.S. political system in which each branch of government is independent, according to Meghan Leonard, a professor of political science at Illinois State University.

“Do we want a court voting in line with the public opinion, or one with the freedom to protect the rights of political minorities?” Leonard asked.

But others see judicial selection commissions are inherently undemocratic.

Chris Bonneau, a professor of political science at the University of Pittsburgh, says the commissions are usually dominated by members of the political, social and legal elite — such as bar members and business leaders — and are typically not accountable to voters. He said they also are usually not as transparent as other forms of judicial selection.

“What happens with the commissions is that states are giving over control of the judiciary to unelected elites and they’re getting a bench that’s significantly skewed to the left and away from what the public’s view of what the law should be is,” he said.

Instead, Bonneau says he sees partisan judicial elections with long terms to be the best method for choosing judges because it both involves voters and avoids the complications of frequently occurring elections and campaigning by judges.

For as long as the U.S. has operated under a tripartite form of government, there has been tension between legislators and the courts, according to Charles Geyh, a law professor and author of a book on the topic, “Who is to Judge? The Perennial Debate Over Whether to Elect or Appoint America's Judges.”

“The way I think about it is this: You want judges independent enough to follow the law the best they can, but not so independent they don’t follow the law and impose their own ideological preferences,” he said.

In his book, Geyh concludes that while appointive systems tend to be slightly preferential to elections, no one system of selection is vastly better than another and what works best often varies depending on the jurisdiction.

Just because a bill has been introduced doesn’t mean it has the traction to become law. But even though it’s unlikely all of the legislation introduced this year will succeed in passing, similar efforts in the past have been successful.

For example, in 2017, North Carolina’s majority Republican Legislature overrode a veto to pass a law that shifted its judicial elections from nonpartisan to partisan.

Politics will always be part of the judicial selection process, but that shouldn’t ease fears about legislation aimed at achieving a specific political purpose or legal outcome in the courts, according to Raftery.

The question becomes “to what extent do legislators impact that process to approve or disapprove of judges that rule against them,” Raftery said.

“If you want a fair and impartial court system, you are less likely to have that system where one branch is the servant of the other,” he said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

Correction: A previous version of this story provided an inaccurate title for William Raftery.