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Symposium on Judicial Elections: Selecting Judges in the 21º Century

Bradley A. Smith: The views contained herein are those of Commissioner Smith and not the Federal Election Commission. The author wishes to thank all symposium authors for their time and participation.

A substantial majority of American judges are subject to some type of voter election, and have been for over a century.1 This fact often seems forgotten, perhaps because of the higher visibility of federal judges, who are appointed for life "during good behavior," vis a vis state judges, who are generally elected. Nevertheless, the fact is that in thirty-nine of our fifty states, judges must face the electorate in some form, either through competitive or retention elections. Of the nation's more than 1200 state appellate judges, 47% are appointed, 40% face partisan elections; and 13% face non-partisan elections. Of nearly 8500 state trial court judges in courts of general jurisdiction, just 24% are appointed, with 43% facing partisan elections and 33% involved in non-partisan elections.2

Since the beginning of the last century the American Bar Association has fought long and hard for merit selection of judges. While more judges are appointed now than in 1900, the numbers have not changed radicallyif the rate of change over the last century keeps up, Professor Roy Schotland has calculated that it will take just 160 more years until all appellate judges are appointed and just 770 years until all trial court judges are appointed.3 So it appears that for our lifetimes, we can probably assume that a substantial portion of our judges will be elected.

Relatively little academic attention has been focused on judicial elections, however, perhaps because judicial elections have not traditionally been front and center in the public eye. Rather, judicial races have been marked by low levels of competition, and little campaigning. Such campaigning as there is, is marked by low spending and is usually limited to bland statements about general fitness. All that may be changing, however. Certainly at the level of state supreme courts, a growing number of judicial elections are hotly contested. Beginning with the recall elections of three California Supreme Court justices in 1986, we have seen a rapid growth in traditional campaigning and interest group activity in judicial elections. These wars were perhaps fought most extensively in the last decade in the former paradise of the plaintiff's bar, Alabama, where business interests engaged in a concerted effort to change the make-up of the state's high court. Races in many other states such as T...

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