University of Denver

Americans Know What They Want in Their State Judges. Can They Agree How to Achieve It?

Professor of Law, New England Law | Boston

What qualities do Americans want in their state judges? Professor Herbert Kritzer, the Marvin J. Sonosky Chair of Law and Public Policy at the University of Minnesota, addresses the question in the Spring 2021 issue of Judicature. In a national online survey, Kritzer asked respondents to rate the importance of 12 characteristics of a judge, six of which captured professional qualities (such as a reputation for integrity or respect from leaders of the legal community) and six of which captured political qualities (such as experience running for political office or respect from elected officials). Respondents were asked to rate the characteristics twice: once for their local trial courts and once for their state supreme court.

The final sample, consisting of 669 respondents, indicated that the public prizes a judge’s professional qualities above all others. For both trial and appellate judges, professional traits were overwhelmingly deemed “essential,” while political traits were much more likely to be considered “not important” or only “somewhat important.” Individuals identifying as Democrats or Republicans gave higher average scores to political characteristics than those identifying as Independents, but only one political trait (“understands community preferences”) was rated as essential by a majority of respondents, and only when applied to trial judges.

These preferences have obvious relevance for methods of judicial selection. If the survey accurately reflects public sentiment, one would expect to see states increasingly moving away from contested judicial elections and toward commission-based appointment systems, such as the O’Connor Judicial Selection Plan, that prioritize judges’ professional traits.

However, the opposite has happened. Momentum toward appointive systems has waned over the last decade, and several state legislatures have recently tried to reconfigure, weaken, or eliminate judicial nominating commissions altogether.

How to explain the disconnect between the public’s desire for professional qualities and legislative hostility to the nominating commissions that emphasize those qualities? Professor Kritzer attributes it in part to a philosophical shift among two key political groups: conservatives and the business community. Both sectors strongly supported appointive systems into the early 2000s, but now regard elections as a better way to produce judges whose decisions will align with their interests.

But this observation, while undoubtedly true, is only a partial explanation. If the public truly sees professional qualities as paramount, one would expect to see broad pushback against any scheme that would weaken those qualities, regardless of how battle lines are drawn. The lack of a public groundswell against elections, and in favor of appointive systems, suggests that something more than typical politics is at work.

A more complete—albeit perhaps more jarring—explanation is that the public simply does not accept that commission-based systems are better at producing judges with strong professional characteristics. Indeed, to the average citizen, the difference in quality between an appointed judge and an elected one may be negligible. Many outstanding state judges do in fact emerge from election systems, and even the most partisan judicial races typically focus on the professional (rather than political) qualities of the candidates. In the mind of the public, then, judicial professionalism might be essential, but also satisfied just as easily at the ballot box as through a commission-based structure.

More importantly, if people believe that the same caliber of judge would emerge from either an elective or an appointive system, professional qualities cease to be a central consideration in the selection process. Other qualities—such as community involvement, political dexterity, or ideological affinity—become more pronounced. And whereas Americans may hesitate in their ability to evaluate a judge’s professional skills, they are surely confident in their ability to evaluate a candidate’s political traits. From the ordinary citizen’s perspective, then, there is no need to grant decision-making authority to an expert commission when voters can do it just as well.

The problem with this view is that commission-based systems are better at assuring the presence of professional qualities across an entire judiciary. For one thing, commissions can help fill interim vacancies more quickly, nimbly, and capably than an election process. Moreover, while judicial elections typically do produce professional judges, they are also more susceptible to producing judges who lack professional qualities. Dark money, machine politics, identity politics, pandering to low-information voters, and issue-oriented social media campaigns are all unfortunate features of modern judicial elections; they give life to marginal candidates who are well-financed or politically connected, while dissuading qualified aspirants from pursuing judgeships altogether. Citizens accustomed to voting for judges may not fully appreciate these steep downsides of elections, especially in comparison to appointive systems. One possible way to move the needle: public education campaigns framed around maximizing judicial professionalism rather than merely reaching an acceptable level.

Merit selection and other commission-based appointive systems made great strides in the last century, fueled by confidence in expert decision-making bodies and skepticism of producing an independent judiciary through the electoral process. That ground has shifted, but supporters of appointive systems can still appeal to the public’s desire for impartial, knowledgeable, and professional courts, and the importance of nominating commissions in bringing those goals to fruition.

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