A state Supreme Court race has rarely been as well-publicized as it was in Wisconsin last April. A few weeks before the election, the court had sided with the GOP and refused both to delay it and to extend the deadline to receive absentee ballots, and many voters were upset that they had to essentially risk their lives to participate. They also knew that, in the deeply purple state, where Biden would end up winning by a margin of only 20,000, the justice they chose would likely decide more election-related decisions, which could potentially alter the outcome of the presidential race.
“Wisconsin Supreme Court race between Kelly and Karofsky is another partisan fight -- but at a time like no other,” read a headline from the Milwaukee Journal Sentinel. “As election nears, COVID-19 pandemic highlights judicial style of Supreme Court candidates,” read another in the Wisconsin State Journal.
In the end, the liberal challenger won by over 162,000 votes, only the second time since 1967 that an incumbent on the Wisconsin Supreme Court was ousted.
But most judicial races are not like Wisconsin last April. In fact, it’s usually nearly impossible to find substantive information about candidates’ past rulings, judicial philosophy, or even their disciplinary record. That’s not the case in only Alaska, Arizona, Colorado, New Mexico, and Utah, where state law requires a commission that incorporates feedback from other members of the justice system, including attorneys, court staff, jurors, law enforcement officers, interpreters, and social workers. Before the election, the commission releases a publicly-available report either recommending for or against the judge’s retention.
Especially in the criminal justice system, judges have an enormous influence. They decide what evidence is admissible and whether to issue bail (and at what cost). Oftentimes, they also have considerable discretion as to sentencing. If you’re looking to end mass incarceration or police brutality, judges are a critical—but often overlooked—component.
For those of us not living in those five states, the best we can do is to look up the candidates ourselves through our local Bar Association, or get involved with a political club, which may play a role in selecting judges for the ballot or helping them campaign. But even if the information in your area isn’t comprehensive, better understanding the system will help you to change it.
Everyone can access some information about their judicial candidates, said Bill Raftery, Senior Knowledge and Information Services analyst with the National Center for State Courts. But, the depth of the information available depends on where you live.
At the most basic level, you can find biographical information, like where the candidate went to law school and when they graduated. At the next level, your local Bar Association may provide a rating, but they only evaluate whether the candidates are qualified for the job, not the quality of their judicial philosophy. (For one example, all three of Donald Trump’s Supreme Court appointees received the American Bar Association’s highest rating).
Less often, local newspapers cover these races or endorse candidates, but doing so is difficult, especially as more and more media organizations face financial collapse. Part of the reason is that judges aren’t typically as visible or overtly political as other candidates. However, that’s starting to change.
Recently, criminal justice reformers have set their sights on the judiciary, which has long been dominated by prosecutors. Led especially by public defenders, judicial candidates in San Francisco, Ohio, and New Orleans ran on explicitly progressive platforms, like eliminating cash bail and ending mass incarceration. And many won.
In Las Vegas, seven public defenders, all women and most women of color, were voted in last November and are already promising reform. “The biggest change that you’ll see come to the bench is that there’s going to be more empathy for the struggles that people face, particularly when they’re poor,” one told The Appeal.
“Even for highly informed practicing lawyers, it is extremely difficult to be well informed about all of the judges.”
The next time you vote for a judge, they may be openly aligning themselves with other progressive candidates, like city council members and public defenders. But more than likely, they’ll stay underneath the radar. In that case, it can be difficult to suss out how they feel on certain issues, even when they’re asked directly by an organization like Reclaim Philadelphia, which administers questionnaires to candidates and then offers endorsements.
“A lot of times, they ask questions that can't be answered under the rules of judicial conduct,” said Dan Anders, a judge of the Philadelphia County Court of Common Pleas. “For example, ‘Would you agree that you would never incarcerate someone who is convicted of their first offense?’ However you answer it, you can’t make those types of promises.”
And even if a candidate has served before, their judicial record isn’t as easy to understand as, say, a legislator’s partisan rating or voting history. “It's one thing if I want to look up an opinion,” said Juliet Sorensen, the Executive Director of Injustice Watch, a non-partisan, not-for-profit watchdog over the Cook County Unified Court System in Illinois. “It’s quite another if I want to look up all of the opinions that Judge So-and-So wrote in the year 2020.”
With roughly 400 judges, Cook County is one of the largest unified court systems in the U.S., and Injustice Watch’s latest guide was created by 22 people, including nine full-time staffers. “Forget people who are on the far side of the digital divide,” said Sorensen. “Even for highly informed practicing lawyers, it is extremely difficult to be well informed about all of the judges.”
So out of ignorance or apathy, many voters skip the judicial races altogether. According to one researcher, that’s the case for more than a quarter of voters, even when they have the option to choose a justice for the state’s highest court. And for lower courts, the average drop off was as high as 39 percent. That includes those who may be directly impacted by the candidates, said Justice Anders. “You’d be surprised how many lawyers don’t vote for judges.”
Even more troubling, those who do cast their votes often make choices based on less than ideal criteria, like the candidate’s perceived gender and ethnicity.
As another researcher found, Democratic Party leaders in Cook County have “been known to recruit ringers—individuals with female names, Irish names, or both, who promise to engage in no campaign activity whatsoever—and strategically place them in countywide contests where a slated candidate is at a name-cue disadvantage.” Their draw is so powerful that they “can offset all of the potential advantage of bar and newspaper recommendations.”
Voters also prefer the candidates they see first. In Pennsylvania, ballot order is determined randomly, and “if you pick number one,” said Justice Anders, “it’s sort of winning the judicial lottery. I cannot remember a candidate who was unsuccessful and in the best ballot position.” (The opposite isn’t necessarily true, however; in his first race, Anders was 34 of 42 and still won.)
There’s also the issue of timing. Because Democrats had a competitive presidential primary in Wisconsin last year, and Republicans didn’t, GOP leaders knew that Democratic turnout would likely be unusually high, and they proposed changing the date of the judicial elections to protect the conservative incumbent. They ultimately abandoned that idea, ostensibly because the optics were so bad, but probably for another reason as well: in odd-numbered years, the kinds of people who turn out skew heavily Republican.
And if you think turnout is bad in presidential and midterm elections, it’s truly horrific in local elections. Even when the mayor is on the ballot, on average, only 15 to 27 percent of voters show up, and they’re disproportionately wealthy, white, and older. In fact, the median age of local election voters is in the 60s, and those over 65 are seven times more likely to show up voters between 18 and 34.
While most states conduct their judicial elections in even-numbered years, five states, including New York, Wisconsin, and Pennsylvania, schedule them only during these “off year” local elections, when turnout is at its lowest. But according to Justice Anders, if you were to include these local races along with those for Congress and President, “the ballot would become unwieldy.” Already on the ballot in 2019, when Justice Anders ran last, were the races for mayor, all 17 seats on the city council, the three seats on the city commission, county sheriff, register of wills, and dozens of judicial positions. More candidates to sift through could make ballot drop-off even worse.
How could voters be better informed?
One model is the third and final level of knowledge about candidates that Raftery mentions: the judicial evaluation commissions in Alaska, Arizona, Colorado, New Mexico, and Utah. (Raftery said he doesn’t know of any other states considering similar commissions).
In Utah, anonymous surveys get sent to lawyers, court staff, and jurors, who are asked to score judges on a scale from 1 to 5 on their legal ability, judicial temperament, procedural fairness, and administrative performance. If a judge scores below a 3.6 in three or more standards, the commission recommends against their re-election. It also sends volunteers to observe the courtroom and solicits comments from the public through its website.
Just like the judges themselves, these actors are still susceptible to biases, but sampling a larger subset of people going through the justice system—including the defendants themselves—helps to mitigate them.
Unlike the Bar Association evaluations, which Raftery describes as “unofficial,” “unlicensed,” and focused only on the opinion of attorneys, the commissions’ work is standardized, holistic, and also examines justices’ role as administrators, another important function they serve. But it only applies to sitting judges, not candidates without bench experience, who are especially difficult to research. It’s possible—Injustice Watch does it—but not easily replicable.
To reach the widest audience, IW created a mobile app that’s searchable by zip code, offered the guide in Spanish, and partnered with South Side Weekly, a local newspaper, to distribute physical copies (including to roughly 1,000 detainees in the system’s jails, though they were ultimately prevented from being allowed to do so). Between early October and Election Day, nearly a quarter of a million unique users viewed the guide online for an average of six to eight minutes. “This is something people want to learn about,” said Sorensen.
But Injustice Watch is a resource-intensive operation. Their budget last year was almost a million dollars, but they generate almost no revenue and instead rely on grants and individual donations. Plus, they were founded by two investigative journalists: one established the Center on Wrongful Convictions, and the other won a Pulitzer.
Still, even with its experience, partnerships, and infrastructure, the organization would essentially have to start from scratch if it wanted to cover another court system, said Sorensen. “We often receive requests about scaling our guide,” she said. “But because even the structure of the elections is so different from one state to another, it's challenging for an organization to replicate without partnering.”
As a whole, the method for selecting judges nationwide defines chaos. In certain states, judicial races only apply for one type of judge, or are partisan for some judges and nonpartisan for others, or are partisan for the primaries but not for the general. In six states, the executive branch appoints judges, but they then must win a retention election to continue serving. And elsewhere, where there are judicial elections, justices will retire early so their successor is chosen by the governor, not the voters. That’s currently the case for eight of the nine justices on the Georgia Supreme Court.
And even where judges are elected, it’s not necessarily democratic. “By the time a judge winds up on the ballot in New York City, the voter doesn't really have much of a choice,” said Janos Marton, a former candidate for Manhattan District Attorney [full disclosure: I contributed $28.08 to Marton’s campaign]. Because the city is so partisan, whoever wins the primary is almost guaranteed to be elected, but even before the primary, justices are selected by the city’s political clubs at a judicial convention.
That fact isn’t well broadcast. “Until I became President of the Eleanor Roosevelt Democratic Club,” which covers the Upper East Side of Manhattan, “I had no idea about it,” said Reshma Patel, the club’s current president and a candidate for city comptroller this year.
Though Patel said that there are still competitive judicial primaries at times, Marton pointed out that elections themselves are not necessarily a good force on the criminal justice system. “It’s known as The New York Post effect,” he said. If a judge is weighing whether to send someone to a diversion program to get help or to incarcerate them, “what’s really in the back of their minds is this: If they go lenient, and that person commits another crime, The New York Post is going to run a story that Judge Smith let this criminal run rampant, which is probably the worst thing that can happen to a judge.”
There’s no perfect way to select the judiciary. As the American Bar Association points out, “The question is not only how to best insulate judges from political forces, but also which political forces—including the political branches, special interests, political parties, and majority rule—pose the greatest threat to judicial independence.”
Keeping all that in mind, the ABA believes that judicial elections should be abolished altogether. In their place, governors should appoint judges who’ve been approved by a credible, neutral, nonpartisan commission, and they shouldn’t have to run in retention elections.
Marton also believes that the governor should be the one to choose judges. “On the one hand, it’s more power invested in one person, which is always concerning, especially if you have a bad governor for eight years,” he said. “But, at least then everybody's clear on where to go if you want better judges. At the end of day, you know where the responsibility lies, and that may actually be easier for people trying to reform the system.”