Center for American Progress Action

RELEASE: Merit Selection and Retention Elections Keep Judges Out of Politics
Press Release

RELEASE: Merit Selection and Retention Elections Keep Judges Out of Politics

Press Contacts

  • Christina DiPasquale

Washington, D.C. — As upcoming retention elections in Iowa and Florida draw national attention, the Center for American Progress Action Fund today released “Merit Selection and Retention Elections Keep Judges Out of Politics,” a report describing why merit-selection systems—while imperfect—are a significant step in the right direction of ensuring that we have a judiciary comprising judges who are both well-qualified and more or less immune from political special interests. Candidates in state supreme court races raised around $211 million from 2000 to 2009—two and a half times more than in the previous decade—and this influx of campaign cash threatens to compromise the impartiality of judges and the ability of the public to get a fair hearing in court.

This CAP Action report argues that merit selection frees a potential judge from political influence by focusing on his or her qualifications, not on the ability to make deals with legislators or rake in campaign contributions. Retention elections subject judges to much less political pressure than contested elections and offer greater judicial independence. The judiciary is the only institution that can remedy violations of the constitution by the other branches of government. If judges are politically accountable, they cannot perform this crucial function.

Most merit-selection systems require appointed judges to subsequently face voters in unopposed retention elections in which voters are asked whether the judge should remain on the bench. Historically, retention elections saw very little campaigning and hardly any campaign contributions, but now conservative interests groups—usually angered by one or two high-profile cases—are mounting unprecedented campaigns opposing retention elections in Iowa, Florida, and possibly in Indiana and Arizona. As a consequence, retention elections could join the trend of expensive and politicized judicial elections. To keep voters focused on a judge’s qualifications, the CAP Action report says these systems should provide voters with unbiased, neutral information on a judge’s record.

Missouri lawmakers have placed a referendum on the 2012 ballot that would give the governor more appointees on the nominating commission. Conservative legislators in Florida are giving voters the chance to require Senate confirmation of a judicial nominee, and special interests such as the Koch brothers’ Americans for Prosperity have joined an unprecedented campaign to have three justices on the state’s supreme court voted out in this year’s retention election, despite the fact that a recent survey conducted by the state bar found that 90 percent of attorneys across the state support these justices.

Critics say that merit-selection systems are undemocratic, but we now operate in a time where campaign contributions risk the independence that judges need so they can vindicate constitutional rights without fear of political backlash. Some judges, even in states with retention elections, have faced a political backlash for rulings that protected the constitutional rights of same-sex couples, women, religious minorities, or unpopular groups such as criminals. The targets of many of these statutes and referenda are often politically powerless, so the judicial branch is the only place they can turn for protection of their rights. This role is crucial to our government’s system of checks and balances, and the judiciary is the only institution that can remedy violations of the constitution by the other branches of government.

To speak with CAP Action experts, please contact Christina DiPasquale at 202.481.8181 or cdipasquale@americanprogressaction.org.

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