Judicial Selection Reform: Examples

JUDICIAL SELECTION REFORM:EXAMPLES FROM SIX STATES

Daniel BeckerMalia Reddick

Library of Congress Control Number: 2003110235

© American Judicature Society 2003

ISBN: 1-928919-14-6

American Judicature Society2700 University AvenueDes Moines, IA 50311515/271-2281www.ajs.org

Allan D. SobelExecutive Vice President and Director

Founded in 1913, the American Judicature Society is an independent, nonprofit organ-ization supported by a national membership of judges, lawyers, and other members ofthe public. Through research, educational programs and publications, AJS addressesconcerns related to ethics in the courts, judicial selection, the jury, court administration,judicial independence, and public understanding of the justice system.

CONTENTS

Acknowledgments v

Introduction vii

1. Campaign Finance Reform in Texas 1

2. Campaign Oversight Committees in Alabama 11

3. Merit Selection in New York 19

4. Partisan to Nonpartisan Elections in Mississippi 27

5. Retention Evaluation in Arizona 35

6. Voter Guides in Washington 43

v

ACKNOWLEDGMENTS

Judicial Selection Reform: Examples from Six States was funded by the Open Society Institute as acomponent of the Judicial Selection in the States project. To view the project web site, visithttp://www.ajs.org/js/. We thank John Kowal of the Open Society Institute, Geri Palast of theJustice at Stake Campaign, and Luke Bierman and Seth Andersen of the American BarAssociation’s Standing Committee on Judicial Independence for their guidance in the planningand preparation of this monograph.

The experiences of state reformers and the insights of judicial selection scholars were essentialto our ability to accurately describe each reform effort and its impact. For each chapter, there arenumerous individuals whom we wish to thank for their willingness to discuss the reforms with usand to review chapter drafts. We thank Professor Tony Champagne of the University of Texas atDallas, former Chief Justice John Hill, and Chief Justice Tom Phillips for sharing their wisdomregarding reform efforts in Texas. For the Alabama chapter, we appreciate the guidance ofProfessor Roy Schotland of Georgetown University Law Center and Mark White, chair of the 1998judicial campaign oversight committee. The New York chapter benefited from the expertise ofLenore Banks of the League of Women Voters of New York State; Richard Bartlett, former chiefadministrative judge of New York; and Luke Bierman of the American Bar Association. For theMississippi chapter, Seth Anderson of the American Bar Association; Beverly Pettigrew Kraft, pub-lic information officer for the administrative office of courts; and the Honorable Michael Mills, for-mer chair of the Mississippi House Judiciary Committee, provided helpful feedback. The com-ments of superior court judge Mark Armstrong significantly improved the Arizona chapter, andJude Cryderman and Wendy Ferrell of Washington’s office of the administrator for the courts andProfessor Nicholas Lovrich of Washington State University contributed to the Washington chapter.

At AJS, Jennifer Burton, Beth Goldstein, and Jacquie Hejmanowski provided thorough andcareful research assistance. Allan Ashman, former director of AJS’s Hunter Center for JudicialSelection, was a valuable source of feedback on each chapter. David Richert, director of publica-tions at AJS, and freelance editor Celia Colista facilitated the publication of this monograph.

Any errors of omission or commission are our own.

Daniel BeckerMalia Reddick

INTRODUCTION

In the following chapters, we examine successful judicial selection reform efforts in six states.The changes accomplished in these states represent a range of reform possibilities—from chang-ing the method of selection, to improving the tone and conduct of the existing process, toenabling voters to make more informed decisions in judicial elections. Specifically, reformsinclude moving from judicial elections to merit selection, making judicial elections nonpartisancontests, limiting the contributions that judicial candidates can accept, creating a watchdog com-mittee to monitor judicial campaign conduct, disseminating a voter guide with information aboutjudicial candidates, and providing voters with evaluations of judicial retention candidates’ per-formance on the bench. These reforms took place in states that represent an array of regional andpolitical cultures—from New York to Alabama, Mississippi to Arizona, and Washington to Texas—and the efforts were led by a variety of state actors, including governors, legislators, judges, pro-fessional associations, citizens’ groups, and the media.

For each chapter, we discuss the nature of the reform and its implementation in other states.Then we consider the reform landscape in that state, including the events that provided the impe-tus for reform. We also describe the actors who initiated and sustained the call for reform andrecount the strategies that brought the reform effort to fruition. Finally, we assess the impact of thereform based on the perceptions of the actors involved, the reactions of the media and the public,and the focus of additional reform efforts.

Judicial selection reform efforts have taken on heightened importance in recent years asjudicial elections have become increasingly expensive and contentious and as voter participationin judicial elections has declined. It is our hope that reformers seeking to preserve public trustand confidence in the courts will learn from the examples of successful reform efforts present-ed here.

Until the late 1970s, judicial elections inTexas were unremarkable events. Democratsdominated the state’s judiciary to such anextent that the only notable judicial electionsoccurred during the Democratic primary. Eventhese races rarely inspired much noticebecause most judges resigned before the end oftheir terms, allowing governors to appointtheir successors who then easily won re-elec-tion. As Anthony Champagne and Kyle Cheeknote, “This arrangement was so common in thefirst 100 years of the 1876 constitution that onestudy concluded that the Texas judicial selec-tion system was primarily appointive.”2

Although few could have predicted it at thetime, the 1976 supreme court election of DonYarbrough, a political unknown who hadnumerous ethical complaints in his back-ground,3 marked the advent of an era ofincreasingly expensive and noisy judicial elec-tions in Texas. Yarbrough, who shared thename of a long-time Texas senator, defeated awell-respected incumbent. A similar situation

unfolded in 1978, when a little-known plaintifflawyer named Robert Campbell was elected tothe supreme court. Campbell’s cause washelped by the fact that University of Texas run-ning back Earl Campbell had won the HeismanTrophy the previous fall.4

The year 1978 was also a notable one inTexas politics because William P. Clements waselected governor—the first Republican to holdthe position since Reconstruction. As a result ofClements’s election, it would be a Republicangovernor who filled interim vacancies on thecourts. Plaintiff lawyers, who thoughtDemocratic judges were more sympathetic totheir positions, became concerned.

In the early 1980s, the examples ofYarbrough and Campbell and the concern thatan increasingly Republican state would have anincreasingly Republican judiciary motivatedplaintiff lawyers to seek ways to create the sortof name recognition that had propelledYarbrough and Campbell to the supreme court.As one study of judicial selection in Texaspoints out, “name recognition might occurnaturally, as with Yarbrough, but it can also bebought.”5 Expensive campaigns provided thename familiarity that plaintiff lawyers desired.

As plaintiff attorneys became more active insupporting judicial candidates, business inter-ests began to see the value of backing their owncandidates. Enormous population growth dur-ing the same period increased the number ofjudicial offices in the state and reduced candi-dates’ opportunities to reach voters through

Campaign Finance Reform in Texas“Expensive judicial races, even if only a symptom of a deeper problem,

are not likely to fade from the judicial landscape without broad, serious campaign finance reform.”1

1. Anthony Champagne and Kyle Cheek, The Cycle ofJudicial Elections: Texas as a Case Study, 29 FORDHAM URB.L.J. 907, 938 (2002).

2. Id. at 910.3. Yarbrough had faced disbarment proceedings in

which a total of 73 violations were alleged. Although hewas not criminally indicted when tape-recorded evidencewas discovered of his plans to murder and mutilate hisenemies, he was later indicted for perjury in reference toa forged automobile title. He eventually resigned from thecourt and gave up his law license. Id. at footnote 24.

4. Id. at footnote 25.5. Id. at 911.

1

2 JUDICIAL SELECTION REFORM: EXAMPLES FROM SIX STATES

old-fashioned avenues like fairs and speechesto civic groups. In Texas, as in several otherstates during the last quarter century, expen-sive campaigns of mass mailings, yard signs,and television spots became typical.6

As elections in Texas became more expen-sive, there was an increased focus on the play-ers behind the scenes who paid for pricey cam-paigns. More than in any other state, the per-ception developed in Texas that there was adirect connection between campaign contribu-tions to judicial candidates and the decisionsthat those candidates later made as judges.Because of the perception that justice was forsale, and because a drawn-out Voting Rights Actdispute precluded any meaningful selectionreform efforts in the late 1980s and early 1990s,Texas turned to campaign finance reform. In1995, after a decade and a half of judicial elec-tions so expensive that they attracted extensivenational media attention, the Texas legislatureenacted the Judicial Campaign Fairness Act,which imposed mandatory contribution limitsand voluntary expenditure limits for judicialcampaigns.

CAMPAIGN FINANCE REFORM IN

THEORY AND IN PRACTICE

In most states, the same campaign financ-ing provisions apply to both judicial candidatesand candidates for other offices.7 In Texas, con-tributions from corporations and labor unionsare prohibited, but prior to 1995, there wereno limits on the amount that individuals andPACs could contribute to candidates for elec-tive office. The Judicial Campaign Fairness Act(JCFA) set limits on contributions to judicialcandidates from individuals, law firms, andPACs, and proposed voluntary expenditurelimits.

Of the states that hold some form of elec-tion for judicial office, fifteen impose no limitson the amount of money that candidates mayaccept from individuals and PACs. Two stateshave individual contribution limits of $10,000,eleven states have limits between $1001 and

$5000, and ten states limit donations to $1000or less.8

Since the early 1980s, the cost of runningfor judicial office has risen dramatically.Judicial campaign financing levels reachedrecord highs in many states in the 2000 elec-tions. Supreme court candidates in Alabamaraised more than $13 million, and, in Illinois,candidates raised more than $8 million.9 InMichigan, candidates, political parties, andinterest groups spent a total of $13 to $15 mil-lion.10 Judicial candidates around the nationraised more than $45.6 million in 2000, a 61percent increase from 1998.11

Although judicial elections were less costlyin 2002, there is a growing concern that judicialelections as expensive as races for other officeswill become the norm rather than the excep-tion. One response has been to establish spe-cial campaign financing regulations for judicialelections, as the Texas legislature did with theJudicial Campaign Fairness Act. The OhioSupreme Court chose this route as well. In1995, the court set contribution and expendi-ture limits for judicial races. However, the con-stitutionality of spending limits was challengedby two Ohio judges in Suster v. Marshall. Thefederal district court ruled that spending limitsviolated the First Amendment,12 and the courtof appeals agreed.13 The spending limits wererepealed in 2001.

Campaign financing regulations must con-form to the U.S. Supreme Court’s decision inBuckley v. Valeo.14 According to the Court, cam-

6. Id. at 909-917.7. See <http://www.fec.gov/pages/cflaw2000 .htm> for

information on campaign finance laws nationwide.8. Deborah Goldberg, PUBLIC FUNDING OF JUDICIAL

ELECTIONS: FINANCING CAMPAIGNS FOR FAIR AND IMPARTIAL

COURTS 11 (Brennan Center: 2002).9. Roy A. Schotland, Judicial Selection at the Crossroads,

prepared for the 2003 Midyear Meeting of theConference of Chief Justices.

10. Id.11. Deborah Goldberg, Craig Holman, and Samantha

Sanchez, JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF

JUDICIAL ELECTIONS 7 (February 2002).12. Suster v. Marshall, 951 F.Supp. 693 (N.D.Oh. 1996).13. Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998).

Campaign Finance Reform in Texas 3

paign contribution limits are permissible, butlimits on expenditures are not. In Buckley, theCourt ruled that contribution limits do notpose a First Amendment concern since they donot “in any way infringe the contributor’s free-dom to discuss candidates and issues.”15

However, spending limits “necessarily reducethe quantity of expression by reducing thenumber of issues discussed, the depth of theirexploration, and the size of the audiencereached.”16 Until recently, some legal scholarsbelieved that states’ interest in preserving theimpartiality of their judiciaries might justifygreater restrictions on speech during judicialcampaigns than during campaigns for otheroffices. However, recent court rulings haverejected this argument.17

Other states have responded to the risingcosts of judicial elections by pursuing publicfinancing of judicial elections. Wisconsin offers

public financing for supreme court campaigns,but funding has declined steadily since the pro-gram was introduced in the late 1970s. In 2002,the North Carolina legislature adopted theJudicial Campaign Reform Act, which providespublic funding for supreme court and court ofappeals candidates if they raise qualifying con-tributions and agree to strict fund-raising andspending limits.

THE ROAD TO REFORM

In the late 1970s, plaintiff lawyers in Texasbegan doling out substantial sums to elect thejudicial candidates they preferred.18 In 1980,Texas became the first state in which the cost ofa judicial race exceeded $1 million.19 Between1980 and 1986, contributions to candidates incontested appellate court races increased by250 percent.20 In 1987, the Wall Street Journalquestioned the Texas Supreme Court’s integri-ty after the court refused to hear an appeal of acase involving Texaco and Pennzoil. The lowercourt had ruled in favor of Pennzoil, a compa-ny whose lawyers had given $355,000 to thecourt’s justices between 1984 and 1987, overTexaco, whose lawyers had also contributed tothe campaigns of supreme court justices but infar smaller amounts.21 This case also receivedcoverage in the New York Times and Time, andthe CBS newsmagazine “60 Minutes” ran ascathing piece about Texas judicial politics enti-tled “Justice for Sale?”

The increasing amount of money spent injudicial elections and the accusations offavoritism toward the plaintiffs’ bar led to callsfor dramatic reform. In 1986, Chief JusticeJohn Hill, working with the speaker of theTexas House of Representatives and the lieu-tenant governor, appointed the Committee of100 to study judicial reform in Texas. Thegroup came up with a “merit election” plan forthe state’s judiciary known as the Texas Plan.22

In promoting the plan, the group cited notonly the charges of favoritism toward largecampaign contributors but also the tremen-dous growth in the state’s population and the

14. Buckley v. Valeo, 424 U.S. 1 (1976).15. Id. at 21.16. Id. at 19.17. See, e.g., Suster v. Marshall, 951 F.Supp. 693; Weaver

v. Bonner, 309 F.3d 1312 (11th Cir. 2002); and RepublicanParty of Minnesota v. White, 536 U.S. 765 (2002).

18. Anthony M. Champagne & Kyle D. Cheek, TexasJudicial Selection: Bar Politics, Political Parties, Interest Groupsand Money, 3 GOV’T, LAW & POL’Y J., 51 (Fall 2001).

19. Anthony Champagne, Interest Groups and JudicialElections, 34 LOY. L.A. L. REV. 1391 (2001).

20. John L. Hill, Jr., Taking Texas Judges Out of Politics: AnArgument for Merit Selection, 40 BAYLOR L. REV. 339 (1988).

21. Thomas Petzinger, Jr. & Caleb Solomon, Quality ofJustice: Texaco Case Spotlights Questions on Integrity of theCourts in Texas, WALL ST. J., Nov. 4, 1987, at 1.

22. The Texas Plan, as originally proposed, called for16 nominating commissions (one for the appellate courts,one in each of nine administrative regions, and one ineach of the counties of Dallas, Harris, Tarrant, Bexar, ElPaso, and Travis). Each nominating commission wouldconsist of two lawyers and two non-lawyers chosen by thegovernor, two lawyers and one non-lawyer chosen by thelieutenant governor, two lawyers and one non-lawyer cho-sen by the speaker of the house, three lawyers chosen bythe president of the state bar association, one non-lawyerchosen by the chair of the Democratic Party, and one non-lawyer chosen by the Republican Party chair. The appro-priate commission would nominate three candidates inthe case of a judicial vacancy. The governor would appointone of the nominees, who would have to be confirmed bythe senate and face a retention election after a year inoffice. The judge would then face a retention electionevery six years. See Anthony Champagne, Judicial Reform inTexas, 72 JUDICATURE 146, 153 (1988).


increasing lack of voter familiarity with judicialcandidates. Between 1950 and 1985, the statehad more than doubled in population from 7.7million to 15 million.23

In spite of its support among governmen-tal leaders, the Texas Plan, even with a modi-fication that would have allowed rural coun-ties to keep elections and a later compromisethat would have restricted merit selection toappellate courts, encountered intense opposi-tion from all sides.24 Minorities and womencomplained that the plan seemed designed tolimit their rise to judgeships at a time whentheir growing numbers made their electionmore likely than it had in the past. ManyDemocratic leaders, because they had a strongconstituency among minority and women vot-ers, objected to the plan. Democrats alsofeared that merit selection might limit theirability to put like-minded judges on thebench. Some Republicans opposed the pro-posal as well, citing gains at the polls duringthe early 1980s. Plaintiff lawyers came outagainst the Texas Plan, fearing that the gainsthey had won would be negated. Organizedlabor also voiced its disapproval. In responseto the Committee of 100, the Committee of250, which included six supreme court jus-tices, formed. Hill’s Texas Plan stirred up somuch opposition from his colleagues on thesupreme court that he eventually resignedover the issue, believing that he could betterlead the reform movement as an outsider.25

Hill founded Texans for Judicial Excellence(TJE) to lobby for merit selection.

Between 1986, when Hill first proposed theTexas Plan, and 1995, when the JudicialCampaign Fairness Act was passed, a number ofevents conspired to limit the prospects for judi-cial selection reform. Merit selection and reten-tion, as embodied in the Texas Plan, took abeating in other states. Missouri, the first stateto adopt merit selection, experienced a scandalin which the governor was accused of attempt-ing to stack the supreme court with friendlyjudges. In California, the unseating of three

supreme court justices, including Chief JusticeRose Bird, showed that retention electionscould be just as expensive and ideological asother judicial elections. Special interest groups,who targeted the three justices because of theiropposition to the death penalty, spent morethan $6 million to campaign against them; thejustices and their supporters spent more than$3 million.26

A case brought against the state of Texasunder the Voting Rights Act may have helpedto increase resistance to both merit selectionand nonpartisan elections as reform possibili-ties in the late 1980s and early 1990s. In 1988,ten individual voters and the League of UnitedLatin American Citizens (LULAC) filed suitunder Section 2 of the Voting Rights Act, claim-ing that the election of trial court judges on acountywide basis diluted the voting power ofAfrican-Americans and Hispanics. The federaldistrict court sided with the plaintiffs and gavethe state legislature an opportunity to fashion aremedy before the court imposed one.

In the special legislative session that fol-lowed, Governor Clements refused to supportthe single-member district remedy proposed byLULAC. Instead, Clements and the Democraticleaders of the house promised to push formerit selection in the next legislative session.27

LULAC and other minority groups opposedthis plan, citing Clements’s poor record inchoosing minorities when given the opportuni-ty to do so.28 The district court rejected bothdistrict-based judicial elections and merit selec-tion, and instead issued an order for nonparti-san elections in the state’s nine most populous

23. Id. at 151.24. Id. at 152-153.25. Wayne Slater, Chief Justice Hill Resigns, THE DALLAS

MORNING NEWS, Aug. 27, 1987, at 1A. 26. Roy A. Schotland, Introduction: Personal Views, 34

LOY. L.A. L. REV. 1361, 1362, footnote 4 (2001).27. Debbie Graves, Officials, Lawyers Demand Reform of

Judicial Elections, AUSTIN AMERICAN-STATEMAN, Nov. 29,1989, at B2; LULAC Opposes Plan to Appoint Judges, AUSTIN

AMERICAN-STATEMAN, Dec. 3, 1989, at B8. 28. Bruce Hight, Minorities Criticize Judicial Merit Election

Plan, AUSTIN AMERICAN-STATEMAN, Dec. 4, 1989, at B1.


counties.29 Although the U.S. Court of Appealsfor the Fifth Circuit later reversed the districtcourt’s decision, holding that Section 2 of theVoting Rights Act does not apply to judicialelections,30 the U.S. Supreme Court rejectedthis ruling and returned the case to the courtof appeals.31 The Fifth Circuit then ruled thatthe plaintiffs had failed to prove a Section 2 vio-lation.32 After six years of litigation, the statusquo was preserved.

For judicial reformers, this controversyrevealed two points. First, minority voters werestrongly opposed to merit selection becausethey did not trust governors, especiallyRepublican governors, to appoint minorities.Second, many voters would remember nonpar-

tisan elections as a reform imposed by a feder-al court. Some minority groups also expresseddislike for nonpartisan elections, arguing thatminorities had better chances through partisanelections.33 The likelihood of either of thesereforms achieving broad popular or legislativesupport decreased during and immediatelyafter the Voting Rights Act controversy.

Another reason that judicial selectionreform failed to progress during this time wasthat it did not have the strong gubernatorialsupport that has proven crucial in other states,such as New York. Texas governors let eventslead them rather than taking initiative on theissue. Governor Clements was a late convert tomerit selection and, at the time, seemed to sup-port the reform primarily to prevent a federalcourt from imposing other remedies.34

Governor Ann Richards, who served from 1990to 1994, favored a switch to district-based elec-tions as a means of preserving minority votingstrength.35

In New York, as discussed in another chap-ter, the strong support of the state’s top judgewas an important factor in bringing aboutreform. Texas’s chief justices have shown simi-lar leadership but without as much success.Chief Justice Hill resigned from the court tofocus his efforts on the fight for merit selec-tion.36 Hill’s successor, Chief Justice TomPhillips, has followed up on Hill’s legacy bybeing a constant critic of the current system ofjudicial selection in Texas.37 In Phillips’s view, asystem that includes gubernatorial appoint-ment and retention elections38 or “robust” pub-lic funding of judicial elections would be thebest solution; however, according to the chiefjustice, those states that cannot achieve theseambitious measures should “make incrementalreforms . . . by imposing reasonable contribu-tion limits, proscribing outrageous campaigntactics, and mandating the full and timely dis-closure of all campaign activities.”39

Since the early 1990s, there have been twotireless advocates of judicial selection reform inthe Texas legislature: Senator Rodney Ellis, a

29. Lawrence E. Young, Ruling Likely to Alter Judges’Campaigns, THE DALLAS MORNING NEWS, Jan. 7, 1990, at33A.

30. LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990).31. Houston Lawyers’ Association v. Attorney General of

Texas, 501 U.S. 419 (1991).32. LULAC v. Clements, 999 F.2d 831 (5th Cir. 1993).33. For example, Demetrius Sampson of the J.L.

Turner Legal Association, an African-American group,said that his group was opposed to nonpartisan electionsbecause its membership believed that nonpartisan elec-tions hurt voter turnout. Young, supra note 29.

34. After leaving office, Governor Clements joinedTexans for Judicial Excellence and later Make TexasProud, organizations founded by former Chief Justice Hillto fight for judicial selection reform. Clements, Ex-FoesCooperate on Judicial Election Reform, THE DALLAS MORNING

NEWS, Oct. 16, 1993, at 13F.35. Christy Hoppe & Lori Stahl, New Plan for Electing

State’s Judges Sought: Democrats, Minorities Who Are Upset withRuling Vow to Fashion Strategy, THE DALLAS MORNING NEWS,Jan. 20, 1994, at 23A.

36. Hill was not alone in leaving the supreme courtbecause he hoped for a move away from judicial elections.In 1995, Justice Bob Gammage retired a year before histerm ended, describing Texas’s judicial selection processas one that “erode[d] public confidence and corrupt[ed]the courts.” Gammage said that he hoped his resignationwould draw attention to the need for reform. GeorgeKuempel, Retiring Justice Slams Texas System, THE DALLAS

MORNING NEWS, Aug. 25, 1995, at 22A.37. Thomas R. Phillips, Judicial Independence and

Accountability, 61 LAW & CONTEMP. PROBS. 127 (1998).38. One of the sticking points of Hill’s merit selection

plan was who would “pick the pickers,” i.e., the nominat-ing commission. Although Phillips has endorsed guber-natorial appointment and retention elections, he has notbeen a vocal proponent of a merit selection system thatincludes a nominating commission.

39. Phillips, supra note 37, at 138.


Democrat from Houston, and Senator RobertDuncan, a Republican from Lubbock.40 Bothsenators introduce reform bills in every legisla-tive session, but they face an uphill battle fortwo reasons. First, Texas’s constitution discour-ages work on “secondary” issues such as judicialselection reform; the legislature only meetsevery two years and then for only 140 days.With the press of more urgent issues, it is diffi-cult for judicial reform-minded legislators toget their colleagues to pay attention to theirbills. Second, the house of representatives hastraditionally been resistant to merit selection,with bills either dying in committee or failingto receive the votes of at least 100 members.

Given the obstacles that judicial selectionreform faces in Texas, a number of factorsmade 1995 a good time for campaign financereform. First, it was clear from events over thepast decade that more far-reaching reformswere unlikely to succeed. The new governor,George W. Bush, had also announced his oppo-sition to any plan that would do away with thedirect election of judges, and the governor’sopinion weighed heavily on Republicans.41

Bush did not reject other reform possibilities,however.

Second, the 1994 elections had seen anoth-er expensive supreme court race between aplaintiff lawyers’ candidate and a pro-businesslawyers’ candidate. In the Democratic primary,Rene Haas challenged conservative RaulGonzalez, with the two candidates spending atotal of nearly $4.5 million.42 Third, the dis-tracting issue of district-based elections, whichappeared likely to affect any judicial selectionreform plan, had been settled by the courts.Fourth, the state had new Republican leader-ship in 1995—leadership that wanted to seetort reform legislation passed and that was will-ing to agree to judicial campaign financereform if Democrats would agree to tortreform. Finally, Senator Ellis found a betterstrategy for pushing a campaign finance billthat had failed in 1993.

In 1993, Ellis had proposed a bill that

passed the senate but attained little support inthe house. Representative Jerry Madden, aRepublican freshman from Plano who servedon the house elections committee, describedthe bill as “too bureaucratic”43 and workedagainst it. In 1995, Ellis approached Maddenabout coming up with a bipartisan bill thatwould achieve more broad-based support. The1993 bill had failed in the house in partbecause of opposition from judges.44 Maddenpolled judges and unsuccessful judicial candi-dates to ask them what reforms they thoughtwould improve judicial elections. Madden andEllis also sought input from the League ofWomen Voters, Common Cause, and the lead-ership of both political parties. According toMadden, they had two main goals: figuring outwhich reforms would be feasible and restoringthe public’s faith in the judiciary.

The bill that was eventually proposedfocused particularly on limiting individual andlaw firm contributions because candidatepolling and discussions with parties and gov-ernment reform groups indicated that enor-mous contributions from wealthy individualsand large law firms tainted the integrity of judi-cial elections. Plaintiff lawyers, who tend tocome from small firms, also wanted law firmlimits in addition to individual limits becausethey felt that they could not compete with thelarge Dallas and Houston corporate firms.45

According to Mark Hey, an aide toRepresentative Madden, Madden built supportfor the bill by seeking the opinions of others,especially judges. Reform advocates couldpoint to their research as evidence that the

40. In the Texas house, Representative Pete Gallegoand former Representative Robert Junell have also beenactive in recommending judicial selection reform.

41. Ken Herman, Bush Signs Judicial Campaign ReformBill, AUSTIN AMERICAN-STATEMAN, June 17, 1995, at B5.

42. Champagne & Cheek, supra note 18, at 52.43. Telephone interview with Representative Jerry

Madden (Jan. 8, 2003).44. Telephone interview with Mark Strama, aide to

Senator Ellis (Jan. 9, 2003).45. Telephone interview with Mark Hey, aide to

Representative Madden (Jan. 8, 2003).


people most affected by the legislation wantedthe recommended changes. Hey also believesthat Ellis’s decision to reach out to a houseRepublican on the elections committee helpedensure that the measure would achieve broad-er support than the 1993 bill.46 AlthoughMadden was a relatively junior representative,his Republican roots were strong because hehad previously served as chair of theRepublican Party of Collin County, a predomi-nantly Republican suburban county north ofDallas.

Mark Strama, who was an aide to Ellis at thetime, said that another key factor in garneringsupport in the house was getting the backing ofRepublicans who sought tort reform. GovernorBush had defeated Democrat Ann Richardsafter she had served only one term, andRepublicans had made gains in the legislature.Tort reform was a key issue for the state’s newpolitical leadership, and a group called Texansfor Lawsuit Reform had suggested a number ofreform measures, including judicial campaigncontribution limits. According to Strama, Ellisand other Democrats told the advocates of tortreform that Democrats could agree to some ofthe tort reform proposals if tort reform sup-porters were serious about campaign contribu-tion limits.

Strama also maintains that both civildefense lawyers and plaintiff lawyers were will-ing to give campaign contribution limits a

chance because of the high cost of judicial elec-tions. “It was interesting,” Strama notes. “WhenI talked to lawyers from both sides who hadbeen major contributors, each was convincedthey were being outgunned by the other. Soinstead of fighting the legislation to curtailcampaign spending, both were willing to trysomething that they hoped might lower theirexpenses.”47

Both the house and the senate approvedthe Judicial Campaign Fairness Act in May, andon June 17, 1995, Governor Bush signed thebill into law.48 The act limits individual contri-butions to statewide judicial candidates to$5000;49 individual contributions to other judi-cial candidates are limited to between $1000and $5000, depending on the population ofthe district.50 The law also limits contributionsfrom law firms and members of law firms to $50if aggregate contributions from a firm and itsmembers exceed six times the maximum indi-vidual contribution limit for that judicial office($30,000 for statewide candidates). Total con-tributions from PACs are limited to 15 percentof the voluntary expenditure limits for thatoffice, so that candidates for statewide judicialoffices may accept up to $300,000 in PAC dona-tions. The law requires that contributors beidentified by name, address, and job title. Thelaw also establishes voluntary expenditure lim-its, with a unique enforcement procedure: theopponent of any candidate who exceeds theexpenditure limits is no longer bound by thecontribution limits.51

THE IMPACT OF REFORM

On the day Governor Bush signed theJudicial Campaign Fairness Act (JCFA), ChiefJustice Phillips described the law as “an excel-lent first step in comprehensive campaignfinance reform.”52 When asked his opinion ofthis statement in early 2003, RepresentativeMadden, the house Republican sponsor of themeasure, disagreed, saying judicial reform hadgone “as far as it needs to go.”53 Between these

46. Id.47. Strama, supra note 44.48. V.T.C.A. Election Code § 253.151-253.176.49. Judges of the supreme court and court of criminal

appeals are elected statewide.50. If the population of the district is less than 250,000,

the limit is $1000. If the district’s population is between250,000 and one million, the limit is $2500. The limit is$5000 in districts that have a population greater than onemillion.

51. Expenditures by candidates for statewide office arelimited to $2 million. Expenditures by court of appealscandidates are limited to between $350,000 and $500,000,depending on the population of the judicial district.Expenditures by all other judicial candidates are limitedto between $100,000 and $350,000, depending on thepopulation of the judicial district.

52. Herman, supra note 41.


two opinions lies the present reality of judicialselection reform in Texas.

While the expense of judicial elections haseased somewhat in recent election cycles andthe disclosure rules in the Judicial CampaignFairness Act have made judicial electionsappear “cleaner,” the perception that justice isfor sale has lingered. Some argue that becauseTexans prefer to elect their judges, the onlyhope for further reform is to revisit the contri-bution limits of the JCFA or to adopt publicfinancing of judicial elections. Organizationsthat continue to push for campaign financereform in Texas include Campaigns for People,Common Cause, and Public Citizen. Theirefforts are informed by a legal watchdog groupfounded in 1997, Texans for Public Justice(TPJ). Among other things, TPJ tracks cam-paign contributions to public officials in Texas,including supreme court justices, and hasissued a number of reports that examine therelationship between campaign contributionsto the court’s members and the decisions of thecourt.54

In 2000, Public Citizen and other nonprof-it organizations filed a lawsuit in federal courtchallenging Texas’s judicial campaign financesystem as a violation of a citizen’s constitution-al right to due process of law. The suit allegedthat judges cannot be impartial when theysolicit and receive campaign contributionsfrom lawyers who argue cases before them. InPublic Citizen, Inc. v. Bomer, the trial court ruledthat the issue should be resolved by Texas citi-zens and their legislators.55 The court ofappeals affirmed, holding that the plaintiffslacked standing to bring the suit.56

In 1999, Governor Bush vetoed a bill thatwould have put judicial candidate informationon the Internet. Although it had passed bothhouses with bipartisan support, Governor Bushrejected the measure because it called on thesecretary of state to oversee the program. Bushbelieved that this would put the secretary ofstate in an “inappropriate role.”57 In 2001,Governor Rick Perry signed a similar law. If

implemented by the secretary of state, the lawwould require judicial candidates to provide astatement that included their education, pro-fessional experience, and other biographicalinformation. The guide would be available tothe public at least 45 days before the election.

Figures like Chief Justice Phillips, formerChief Justice Hill, Senator Ellis, and other leg-islators remain steadfast in their pursuit ofmerit selection or gubernatorial appointmentfor at least the appellate courts, giving speech-es and interviews on the subject, introducing orsupporting legislation, and encouraging discus-sion. In the 1997 legislative session (the firstsession following the passage of the JCFA), leg-islators introduced various bills that called for amodified merit selection plan for appellatecourts, nonpartisan judicial elections, and theelimination of straight-ticket voting in judicialelections. None of these measures passed. Inthe 1999, 2001, and 2003 sessions, bills callingfor the appointment and retention of appellatejudges passed the senate but stalled in thehouse. In 2003, Hill formed Make Texas Proud,a political committee dedicated to promotingan appointment-retention system.

Various opinion surveys conducted sincethe 1995 reforms reveal continued dissatisfac-tion among voters, lawyers, and judges with allaspects of the judicial selection process inTexas. One set of surveys indicated that 83 per-cent of voters, 42 percent of lawyers, and 52percent of judges supported nonpartisan elec-tions.58 In another series of surveys, 55 percent

53. Madden, supra note 43.54 The reports are Pay to Play, Checks and Imbalances, and

Payola Justice. <http://www.tpj.org/reports/>. 55. Public Citizen, Inc. v. Bomer, 115 F.Supp.2d 743

(W.D.Tex. 2000). 56. Public Citizen, Inc. v. Bomer, 274 F.3d 212 (5th Cir.

2001). 57. Steve Brewer and Kathy Walt, Bush Vetoes Public-

Defense Bill, OKs Health-Care Fee Negotiations, HOUSTON

CHRONICLE, June 22, 1999, at 1A.58. Texas Supreme Court / State Bar of Texas / Texas

Office of Court Administration (1999) <http://www.courts.state.tx.us/publicinfo/publictrust/execsum.htm>;Campaigns for People (2002), discussed in Janet Elliot,Ethics Rules Revised for Judicial Candidates, HOUSTON

CHRONICLE, Sept. 19, 2002, at 34.


of voters reported having little or no informa-tion on judicial candidates in the last election,59

and 91 percent of judges said that “because vot-ers have little information about judicial candi-dates, judges are often selected for reasonsother than qualifications.”60 According to arecent survey of Texas judges, 50 percent weredissatisfied with the tone and conduct of judi-cial campaigns, 69 percent felt that they wereunder pressure to raise money during electionyears, and 84 percent said that “special interestsare trying to use the courts to shape policy.”61

Finally, survey results showed that between 72percent and 83 percent of voters,62 andbetween 28 percent and 48 percent of judges,63

believed that campaign contributions had atleast some influence on judges’ decisions.

While the 1995 Judicial Campaign FairnessAct succeeded in placing some controls onexpensive campaigns, the continued concernsabout judicial elections indicate that morework could be done in Texas. The chief justice,public interest groups, and some lawmakersbelieve that judicial selection reform should gofurther. The question in the coming years willbe whether state leaders and the public willpush for change.

59. Campaigns for People (2002), discussed in BruceDavidson, Low-Key Judicial Races Are Expected, SAN ANTONIO

EXPRESS-NEWS, Sept. 1, 2002, at 2G.60. Justice at Stake Campaign (2001), <http://www.jus-

ticeatstake.org/files/SurveyPullOutTexas.pdf>.61. Id.62. Texas Poll (1997), discussed in Ken Herman,

Legislature Again Tackles Reforms for Election of Judges, AUSTIN

AMERICAN-STATEMAN, Mar. 9, 1997, at B1; Texas SupremeCourt (1998), discussed in Warren Richey, Justice for Sale?Cash Pours into Campaigns, CHRISTIAN SCIENCE MONITOR,Oct. 25, 2000, at 2; and Campaigns for People (2002),supra note 59.

63. Texas Supreme Court (1998), id.; Texas SupremeCourt / State Bar of Texas / Texas Office of CourtAdministration (1999), supra note 58; and Justice at StakeCampaign (2001), supra note 60.

Judicial selection in Alabama takes placethrough partisan elections. During the 1980sand early 1990s, these elections becameincreasingly expensive and mean-spirited.Some voices in the state began calling for alter-native means of selection, such as merit selec-tion or nonpartisan elections, while otherscalled for campaign finance restrictions forjudicial elections. Motivated by particularlycontentious elections in 1994 and 1996, theAlabama Supreme Court took steps to improvejudicial campaign conduct. The court revisedthe canons of judicial ethics to prevent candi-dates from personally soliciting campaign con-tributions and to make candidates responsiblefor the content of statements made by theircampaigns. The court also authorized the cre-ation of a judicial campaign oversight commit-tee for the 1998 elections to act as a resourcefor candidates with questions about appropri-ate campaign conduct. Based on the success of

the 1998 committee, a committee was alsoestablished for the 2000 races. These commit-tees succeeded in restoring some measure ofcivility to judicial campaigns, although theprice tag for a judgeship in Alabama continuesto rise.

The 1998 committee consisted of twelvejudges, attorneys, and private citizens.2 Thecommittee met with candidates, reviewed withthem the canons of judicial ethics, and con-vinced most to sign a pledge demonstratingtheir “commitment to compliance with the eth-ical standards and goals of the Committee.”3 Italso handled more than 350 formal candidateinquiries regarding permissible conduct andcountless informal requests for “non-partisan,practical advice about the ethics of judicialcampaigning.”4 The committee had no formaldisciplinary power; it could only refer trans-gressions to the Alabama Judicial InquiryCommission or to the state bar. However, itcould issue general public statements aboutinstances of appropriate and inappropriatecampaign conduct. The committee viewed itsrole as that of a “neighborhood watch” for badbehavior among judicial candidates.5

Newspaper editorials, as well as lawyers andjudges interviewed for this chapter, have statedthat the 1998 committee’s work successfullyprevented the intense negativity seen duringthe 1996 election. In its own assessment of its

Campaign Oversight Committees in Alabama

“Campaign conduct oversight committees—some of which are official, some quasi-official, and some unofficial committees of diverse community leaders—can make a major difference in

curbing inappropriate judicial campaign conduct.”1

1. Barbara Reed and Roy A. Schotland, JudicialCampaign Conduct Committees, 35 IND. L. REV. 781, 783(2002).

2. Two members were chosen by the supreme court,one by the court of criminal appeals, one by the court ofcivil appeals, four by the circuit judges’ association, andfour by the district judges’ association.

3. Judicial Campaign Oversight Committee, REPORT TO

THE SUPREME COURT OF ALABAMA, 11 (1998).4. Id. at 13.5. Id. at 11.

2


efforts, the committee saw its activities as suc-cessful until near the end of the campaign,when it felt it became unable to limit negativeattacks by candidates.

In 2000, the supreme court created a new,larger committee of twenty-six members. The2000 committee consisted only of lawyers andjudges and operated slightly differently thanthe 1998 committee. According to Maury D.Smith, chair of the 2000 committee, there wasa concern that the 1998 committee had over-burdened a small number of committee mem-bers.6 To remedy this, the new committee cre-ated a procedure that dispatched three sub-committee members to the region of the statewhere a dispute had arisen, allowing for effi-cient and prompt handling of complaints. Thecommittee also brought candidates to forumsat which they could ask questions about ethicalbehavior.

The 2000 committee had success similar tothat of the 1998 committee in curtailing uneth-ical behavior among candidates.7 As one studyof the 2000 elections noted, “Strikingly,although supreme court seats were contestedwith such intensity that over $13 million wasspent, and a major litigation arose over onecampaign ad, Alabama was dramatically moredecorous than Illinois, Michigan, and Ohio,which had similar hotly-contested races.”8

Despite the improvement in the tenor ofjudicial campaigns in Alabama, nothing thecommittees did could control the spiralingcosts. While no single race in 1998 or 2000reached the $4.5 million level of the infamous1996 race,9 which will be discussed in detailbelow, candidates for three supreme court seatsspent more than $7 million in 199810 and can-didates for five seats spent more than $13 mil-lion in 2000.11 These are among the mostexpensive judicial elections in history and rivalthe amount of money spent in races for theU.S. Senate.

Among the range of possible judicial selec-tion reforms in a state with partisan elections,the creation of a watchdog committee to over-

see elections is a moderate step. It appears,however, that the committees of 1998 and 2000effectively contained the worst excesses of pre-vious elections. Surprisingly, despite the suc-cesses of the 1998 and 2000 judicial campaignoversight committees in preventing some ofthe outrageous ads and mailings of earlier cam-paigns, the supreme court did not establish anoversight committee for the 2002 election.

CAMPAIGN OVERSIGHT COMMITTEES IN

THEORY AND IN PRACTICE

Judicial campaign oversight committeesoperate in at least ten states nationwide. Theactivities of these committees vary from state tostate, but, in general, their role is to promoteethical campaign conduct by educating candi-dates, advise candidates regarding proposedadvertisements and other campaign materials,and, if necessary, make public statements aboutinappropriate conduct by candidates.12

Oversight committees may be administered bythe judiciary, the bar, or citizens’ groups. Insome states, campaign oversight committees

6. Telephone interview with Maury D. Smith, chair ofthe 2000 judicial campaign oversight committee (Aug. 9,2002).

7. The 2000 committee was not without its critics. Itfaced a controversy during its tenure unlike anythingencountered by the 1998 committee when Justice HaroldSee accused his fellow Republican Roy Moore, an oppo-nent for the position of chief justice of the supreme court,of being “soft on crime.” Moore filed a complaint with theoversight committee, but the matter became moot whenMoore won the primary. Some members of the 2000 judi-cial campaign oversight committee think the committeecould have handled the initial investigation of the com-plaint more efficaciously. One member, speaking off therecord, said that he thought the committee dragged itsfeet in investigating Moore’s complaint because of afavorable disposition among committee members to See.A key omission of the 2000 committee was its failure toproduce a report documenting its activities.

8. Reed & Schotland, supra note 1, at 789.9. Pamela Willis Baschab, Putting the Cash Cow Out to

Pasture: A Call to Arms for Campaign Finance Reform in theAlabama Judiciary, 30 CUMB. L. REV. 11 (1999-2000).

10. Id.11. Roy A. Schotland, Financing Judicial Elections, 2000:

Change and Challenge, 2001 L. REV. MICH. ST. U. DET. C. L.849 (2001).

12. Reed & Schotland, supra note 1, at 783.

Campaign Oversight Committees in Alabama 13

are an arm of the supreme court, or are oper-ated by the court in conjunction with the statecourt administrative body and/or the statejudicial disciplinary body.13 In other states, over-sight committees are run by state and local barassociations or by independent organizationssuch as the League of Women Voters.14

Campaign oversight committees may also beclassified according to whether they are officialor voluntary. Official committees include thoseadministered by a judicial body or a mandatorystate bar association.15

The ways in which official campaign over-sight committees operate vary, but most havesimilar procedures. Most committees requestthat candidates acknowledge in some way thatthey understand the state’s judicial canons asthey relate to campaigns. All have formal pro-cedures to handle disputes between candidatesand have enforcement mechanisms when can-didates behave unethically. The biggest differ-ence among official committees in differentstates is their makeup—some states only allowlawyers and judges to serve, while othersinclude laypeople.

For the 2002 elections, there were judicial-ly administered campaign oversight commit-tees in five states: Georgia, Louisiana,Mississippi, Nevada, and South Dakota. InFlorida and Ohio, rules are in place that aresimilar to some of those followed by officialoversight committees. (Ohio’s supreme courtrequires candidates to attend a two-hourcourse in campaign finance and ethics andemploys an expedited version of its normaljudicial disciplinary procedures to discipline orexonerate candidates accused of behavingunethically. Florida’s judicial ethics advisorycommittee conducts candidate forums in every

circuit with a contested election and has anelection practices subcommittee that providesquick responses to campaign questions.)

Committees run by voluntary state bar asso-ciations are active in two states: Ohio and NewYork. Candidates in Ohio are asked to sign anagreement that they will conduct their cam-paigns with a commitment to the judicialcanons, take personal responsibility for theircampaign materials, submit all materials pro-duced by their campaigns to the committee atleast forty-eight hours before public disclosure,and allow the committee to eliminate false ormisleading materials.16 The New York State BarAssociation recently instituted a campaign con-duct committee patterned after one that hasoperated in Erie County, New York, since 1985,creating model guidelines for committees atthe county level and a model pledge for candi-dates. The bar is working to help each of itstwenty most populous counties set up commit-tees. To handle disputes in counties that do notestablish committees and for less populouscounties, the bar has a “backstop” oversightcommittee in place. In other states such asCalifornia and Florida, local or municipal cam-paign conduct committees are run by local barassociations in a manner similar to that of thelarger state oversight organizations.17

The main advantage of official campaignoversight committees—those that are adminis-tered by the judiciary or by mandatory bar asso-ciations—is the strength of their enforcementprocedures. Because their decisions have theauthority of the state behind them, candidatesare forced to modify their behavior or suffercensure or worse. At the same time, these com-mittees can face charges that their efforts toclean up judicial campaigns violate the FirstAmendment. The constitutional issues thatofficial committees confront lead manyobservers to endorse the voluntary committeemodel. Voluntary committees may also gaincredibility from having a more diverse mem-bership of individuals “who are selected pre-cisely because they are respected and neutral

13. Barbara Reed, Address at the Summer CampaignMeeting, Justice at Stake Campaign (July 22, 2002).

14. Id.15. Id.16. The 48-hour disclosure stipulation has met with

opposition from candidates on the statewide level. In2002, candidates refused to sign the pledge because of thisprovision.

17. Reed & Schotland, supra note 1.


voices” rather than “purely political appointeescharged with protecting favorites.”18

Recommendations from the 2001 NationalSymposium on Judicial Campaign Conductand the First Amendment, which was convenedby a steering committee of several state chiefjustices, included the “establishment of bothofficial and unofficial campaign conductprocesses to help assure appropriate campaignconduct.”19 The steering committee also rec-ommended that both nonlawyers and retiredjudges be included as members of conductcommittees and described unofficial, or volun-tary, campaign conduct committees as “particu-larly well-positioned to help assure appropriatejudicial campaign conduct.”20

THE ROAD TO REFORM

Over the course of the 1980s and 1990s,Alabama went from being a one-party state to astate with a genuine two-party system.Democrats occupied every seat on the appel-late courts from the end of Reconstructionuntil 1994, but Republicans slowly gainedascendancy. Following the 2002 elections, theparty controlled all but three of the nineteenseats on the state’s appellate courts, whileDemocrats still dominated circuit and districtjudgeships. The rise of genuine contestation inappellate court elections attracted special inter-est money to judicial elections. In the 1994 and1996 elections, groups representing trial attor-neys and business interests spent $11 millionon judicial elections.21

As elections became more hotly contested,special interest groups began to keep score ofjudicial decisions, compiling lists of justiceswho favored or opposed their particular agen-da. Judges began to be labeled as conservativeor liberal and, accordingly, received the sup-port of certain groups and the opposition ofothers. The policy area that has polarized theAlabama judiciary in recent years is tortreform.

During the 1980s, Alabama in general and

one county in particular became “nationallyrecognized as tort hell.”22 In response, the leg-islature passed a tort reform package in 1987.When many of these laws were later declaredunconstitutional by the supreme court, elec-tions to that court took on a heightened signif-icance. In turn, the increasing politicization ofjudicial races required increased fundraisingon the part of judicial candidates. By the early1990s, Alabama’s campaigns began to benoticed nationally for their expense and nasti-ness.23

By 1993, the supreme court had overturnedthe last of the 1987 tort reform laws. In themeantime, national media outlets began run-ning such stories as the $50 million awarded toa man who sued over a $1,000 discrepancy inhis used car loan, or the BMW owner whosepayment for receiving a car with a damagedpaint job was “reduced” from $4 million to $2million. Alabama’s judicial elections attractedoutside attention and money from businessinterests and associations of trial attorneys. The1994 election for the chief justice’s seat wouldbe the most hotly contested the state had everseen.

The 1994 race for supreme court chief jus-tice pitted Ernest “Sonny” Hornsby againstPerry Hooper, Sr. Hornsby, a past president ofthe Alabama Trial Lawyers Association, hadbeen chief justice since 1989. Early in the cam-paign, many observers thought Hornsby wouldwin easily, given his experience and gregariousnature. Hooper seized on the tort reform issue,however, and made the race competitive. In

18. Id. at 790.19. The Way Forward: Lessons from the National Symposium

on Judicial Campaign Conduct and the First Amendment, 35IND. L. REV. 649, 655 (2002).

20. Id.21. Anne Permaloff & Carl Grafton, Key Players Spent

Over $11 Million in Tort Fight, BIRMINGHAM NEWS, Jan. 2,1997, at 1A.

22. Gregory Jaynes, Where the Torts Blossom: WhileWashington Debates Rules About Litigation, Down in Alabama,the Lawsuits Grow Thick and Wild, Time, Mar. 20, 1995, at38.

23. Hugh Maddox, Taking Politics Out of Judicial Elections,23 AM. J. TRIAL ADVOC. 329, 332–34 (Fall 1999).


response, Hornsby unleashed a negative adcampaign accusing Hooper of releasing a bur-glar who later murdered a woman. Hooperresponded with ads depicting Hornsby as a typ-ical trial attorney, “exploiting victims in orderto further [his] shallow political objective.”24

The election ended in a dead heat, with bothsides declaring victory. Eventually, the racecame down to disputed absentee ballots thathad not been properly signed. Hooperachieved victory when the U.S. Court ofAppeals for the Eleventh Circuit threw out theabsentee ballots.

This 1994 contest served as a prelude for a1996 race that made Alabama’s judicial elec-tions infamous nationwide.25 Incumbent JusticeKenneth Ingram faced the Republican HaroldSee. Groups sponsored by trial lawyers pro-duced ads opposing See, accusing him of hav-ing a “secret” past and of abandoning his wifeand children. See responded with ads featuringhis ex-wife and daughter from his first marriagesaying that his opponent’s ad did not contain“a shred of truth.” Later, another groupopposed to See produced an ad featuringfootage of a skunk fading into a picture of See,with the message: “Some things you can smell amile away.” See ultimately defeated Ingram in arace that cost more than $4.2 million.

The 1996 election served as the impetus forthe judicial campaign oversight committees of

1998 and 2000.26 Newspaper articles and peo-ple interviewed for this chapter assert that itwas the repeated showing of the skunk ad thatled the supreme court to take action. AFebruary 1997 poll revealed that the public hadreached a high level of disgust immediatelyafter the 1996 campaign.27 Forty-nine percentof voters had an unfavorable opinion of judicialcampaigns. Seventy-two percent of votersexpressed dissatisfaction with judicial cam-paign contributions, and 63 percent said thatjudges were dependent on contributions toattain office. The poll revealed quite clearlythat Alabama citizens disapproved of the 1996judicial elections and that expensive judicialcampaigns diminished confidence in theimpartiality of the judiciary.

The legislature had attempted to addressthese concerns with a 1995 law that requiredjudges to recuse themselves from cases inwhich one or more of the parties, including theattorneys, had made a substantial contributionto their campaign.28 However, the supremecourt committee charged with crafting rules toenforce this statute could not reach agreement.The recusal law remains unenforced.

29Faced

with criticism of Alabama’s judicial electionsand aware that the recusal law had not beenimplemented, Chief Justice Hooper decided in1997 to revise the canons of judicial ethics andto establish the judicial campaign oversightcommittee for the 1998 elections.


The 1998 and 2000 judicial campaign over-sight committees in Alabama achieved theirprimary goal of preventing campaigns as uglyas those in 1994 and 1996. If that were all theyhad accomplished, however, their recordwould not be very impressive. As Mark White,chair of the 1998 committee, notes, “the onlyway to go was up” after the 1996 election. The1998 and 2000 committees are impressivebecause they changed the spirit of judicial cam-paigns in Alabama.

24. Edward Felsenthal, Justice Delayed: A Year AfterElection, Alabama’s Chief Judge and His Foes Battle On, WALL

ST. J., October 16, 1995, at A1.25. See Dale Russakoff, Legal War Conquers State’s Politics;

In Tort Reform Fight, Alabama Court Race Cost $5 Million,WASH. POST, Dec. 1, 1996, at A01.

26. In 1995, Mark White, the attorney who would laterchair the 1998 campaign oversight committee, plantedthe seed for an oversight committee in a presentation atAlabama’s Third Citizens’ Conference on the StateCourts.

27. Marketing Research Institute, JUDICIAL SELECTION IN

ALABAMA STATEWIDE VOTER SURVEY, (1997).28. Ala. Code 1975 § 12-24-1. The amounts were to have

been $4000 for appellate court judges and $2000 for cir-cuit judges.

29. Telephone interview with Mark White, chair of the1998 judicial campaign oversight committee (Jan. 29,2003).


In an interview for this chapter, Whitepointed out the enormous need for ethicalguidance that the 1998 committee filled.“There was an overwhelming demand fromcandidates just for knowledge. People wantedto do the right thing, and they wanted adviceon civility. If I had known the extent of theneed, I wouldn’t have given my home numberout,” White said. According to White, the 1998committee saw its primary purpose as provid-ing guidance rather than instilling discipline:“We were trying to be helpful and to get candi-dates to operate at the highest ethical level.Because we knew some candidates might feelthreatened by us and feel we were trying to pre-vent them from running a hard campaign, wetook the attitude that we were trying to helpeveryone win. We wanted everyone we helpedto win, but to win ethically.”

30

Maury D. Smith, chair of the 2000 commit-tee, pointed out that his group also was suc-cessful: “We curtailed actions that should havebeen curtailed.” According to Smith, the mosteffective element of both committees was theirmere existence. Candidates, in general,behaved well because they knew the committeewould act if they behaved badly. In Smith’swords, “just being in place made us effective.”

31

A number of editorials both immediatelyafter the 1998 elections and during the 2000contests noted the improved atmosphere ofthose races compared to the 1996 campaigns.In a Birmingham News editorial publishedimmediately after the 1998 elections, the papernoted that “much of the credit for this year’srelatively clean elections goes to the candidatesthemselves, but give a nod to the supremecourt and the new judicial campaign oversightcommittee for helping them along.”32 Anothereditorial in the same paper lauded ChiefJustice Perry Hooper, Sr. for appointing anoth-er committee for the 2000 race: “[C]redit theretiring Alabama chief justice with working tomake sure those judges who do run for re-elec-tion and their opponents keep their campaignson the up and up.”33 Circuit Court judge

William Shashy, who sought advice from the1998 committee, described the committee as“very effective at stopping unfair advertise-ments.”34 Rich Hobson, the director ofAlabama’s administrative office of courts,believes that the 1998 and 2000 committeeschanged the atmosphere of judicial elections.According to Hobson, “there was a real goodcleaning up of campaigns in those two elec-tions. People know the rules now if they’regoing to run.”35

Alabama’s judicial campaign oversightcommittees of 1998 and 2000 represented amoderate reform that succeeded in changingthe tone of judicial elections in the state. Giventheir achievement, the compelling questionthat arises is: Why did the Alabama SupremeCourt not create a committee for the 2002 cam-paign? The official answer, provided by Hobsonas a spokesman for Chief Justice Roy Moore, isthat Alabama did not create a committee in2002 primarily for fiscal reasons. The state wasfacing a statewide hiring freeze, and the courtswere under funded. Although the members ofthe past judicial campaign oversight commit-tees were volunteers, the state provided thefunds for committee staff. Hobson also pointsout that there were only three statewide judicialraces in 2002, so the need was not as pressing.

The decision to forego a campaign over-sight committee in 2002 may have destroyed abarely begun tradition. According to JudgeShashy, who was helped by the 1998 committeeand served on the 2000 committee, “It’s unfor-tunate that there may not be an oversight com-mittee in future elections. We need one.”36

30. Telephone interview with Mark White (July 31,2002).

31. Smith, supra note 6.32. A Nicer Election in Judicial Races, No Repeat of 1996’s

Tacky Campaign, BIRMINGHAM NEWS, Nov. 9, 1998, at A6.33. Cleaner Campaigns, Judicial Elections More Civil Thanks

to Oversight Committee, BIRMINGHAM NEWS, Aug. 2, 1999, atA6.

34. Telephone interview with William Shashy, circuitcourt judge (Aug. 14, 2002).

35. Telephone interview with Rich Hobson, director ofAlabama’s administrative office of courts (Aug. 2, 2002).

36 Shashy, supra note 34.


Alabama may have gotten through the 2002election cycle without attracting as muchnational attention as it did in 1996, but theprospect for clean campaigns in future elec-tions is uncertain.

In 1977, New York changed the way itselected judges for its highest court, the courtof appeals, from partisan elections to a meritselection system.2 Under the change, voters nolonger elect judges for the court of appeals, butinstead the governor appoints judges from alist submitted by the commission on judicialnomination.3 The commission consists oftwelve people: four chosen by the governor,four chosen by the chief judge of the court ofappeals, and one each chosen by the presidentpro tem of the senate, the speaker of the assem-bly, the minority leader of the senate, and theminority leader of the assembly. Of the mem-bers chosen by the governor and the chief

judge, only two may be from the same politicalparty, and only two may be members of the bar.After the governor appoints a nominee fromthe commission’s list, he or she must then beconfirmed by the senate.

Unlike most merit selection systems, NewYork has no retention election. Instead, at theend of their terms, judges must reapply to thecommission on judicial nomination and beconsidered along with other applicants for theposition. Essentially the selection process,including nomination, gubernatorial appoint-ment, and senate confirmation, begins all overagain.

The legislature approved merit selection in1976 and 1977, and the measure was submittedto the voters in the 1977 elections. Although aGannett News Service poll had shown that fourout of five voters statewide favored the contin-ued election of court of appeals judges, meritselection passed in November 1977, mainlybecause of overwhelming support in New YorkCity. Voters in the city favored merit selectionby a two-to-one margin; this strong showinghelped overcome a slightly negative voteamong upstate New York voters.4

This victory for merit selection in New Yorkfollowed a series of rancorous elections in theearly 1970s. These elections prompted concernamong citizen groups, the leadership of theNew York State Bar Association, the editorialwriters of the New York Times, and, most impor-

Merit Selection in New York“Although no system of judicial selection eliminates political

considerations completely, a merit selection system minimizes the effects of partisan politics on the judicial selection process and allows

judges to concentrate on the business of the courts.”1

1. Samuel Lathan Grimes, “Without Favor, Denial, orDelay”: Will North Carolina Finally Adopt the Merit Selection ofJudges?, 76 N.C. L. REV. 2266, 2311 (1998).

2. The change was part of a thorough reform of NewYork’s judiciary that also included the creation of the NewYork State Commission on Judicial Conduct and the cen-tralization of New York’s court administration. New York’scurrent system for selecting court of appeals judges islabeled merit selection although it differs from theAmerican Judicature Society’s model merit selectionprocess in that there are no retention elections.

3. In New York, the commission on judicial nominationsubmits a list of seven names. Under AJS’s model meritplan, the judicial nominating commission submits a list oftwo to five names.

4. Elizabeth Hubbard, who was with the New YorkLeague of Women Voters during this time, said that theoutcome was uncertain until the end. She remarked,“Waking up the morning after the election, it was surpris-ing to see that the measure had passed. We had notexpected it.” Telephone interview with Elizabeth Hubbard(February 13, 2003).

3


tantly, the governor, key senators, and the chiefjudge of the court of appeals that elections tothe court were becoming too “expensive anddemeaning.”5 One senator summed up theworries by saying, “There is a strong feelingthat we’re not attracting the right type of indi-vidual to the bench.”6

A quarter century later, merit selection forthe court of appeals has had the desired effectof putting judges of New York’s highest courtabove the fray of elections. Proponents of meritselection also believe that it minimizes the roleof politics in the selection process and leads tothe selection of a higher caliber of judges.Whether either of these results has beenachieved in New York is the subject of somedebate.

MERIT SELECTION IN THEORY

AND IN PRACTICE

Although there is no standard form ofmerit selection, there are some common fea-tures among states with merit plans. Undermerit selection, a governor appoints a judgefrom a list submitted by a nominating commis-sion usually composed of both lawyers and non-lawyers. After an initial term of office, the judgemust run unopposed in a retention election orbe reappointed by the commission.

How did states come to choose judges inthis manner? Among the first states, either thechief executive or the legislature determinedthe makeup of the judiciary, and the public hadno direct role.7 In the early nineteenth century,states switched to the election of judges in a fer-vor of Jacksonian democracy. It was thoughtthat judges were instruments of the upper class-es and that only popular election would reformthe judiciary. By the turn of the twentieth cen-tury, however, popular election led to politicalmachines selecting and controlling judges.States began to tinker with the election formu-la, starting with the introduction of nonparti-san judicial elections. By 1927, nonpartisanelections were held in twelve states.8

During the same period, Albert M. Kales,one of the founders of the AmericanJudicature Society (AJS), devised an initial ver-sion of a merit selection plan that called for thepopular election of a supreme court chief jus-tice who would, in turn, appoint the other jus-tices. By the 1930s, this proposal had evolvedinto the more familiar merit selection plan thatincludes a nominating commission, gubernato-rial appointment, and retention elections.

In 1940, Missouri became the first state toinstitute a merit selection plan along the linessuggested by AJS. Over the next half century, anumber of states adopted merit selection forsome or all of their courts. These states and thedate they adopted merit selection include:9

Kansas (1958), Alaska (1959), Oklahoma(1961; 1967), Iowa (1962), Nebraska (1962),Colorado (1966), Vermont (1967), Indiana(1970), Tennessee (1971; 1994), Wyoming(1972), the District of Columbia (1973),Florida (1973), Arizona (1974), New York(1977), Hawaii (1979), South Dakota (1980),Utah (1984), Connecticut (1986), New Mexico(1988), and Rhode Island (1994).10 In additionto these states, a handful of other states haveestablished merit selection by executive order,and several elective states use merit plans to fillinterim vacancies.11

5. Linda Greenhouse, State Senate Urges New Way to SelectJudges, N.Y. TIMES, Mar. 23, 1976, at 43.

6. Id.7. Vermont, which had popular elections for its probate

judges, is an exception. In some states, including Maine,Maryland, Massachusetts, New Hampshire, New York,Pennsylvania, and Vermont, an elected executive councilhad to approve gubernatorial appointments. For histori-cal information on state judicial selection methods, seeEvan Haynes, THE SELECTION AND TENURE OF JUDGES,NATIONAL CONF. OF JUDICIAL COUNCILS 101-135 (1944).

8. For a concise summary of judicial selection trends inthe United States, see Larry C. Berkson, JUDICIAL SELECTION

IN THE UNITED STATES: A SPECIAL REPORT (AJS:1999)<http://www.ajs.org/js/berkson.pdf>.

9. A state is included in the list if it uses merit selectionfor any level of court.

10. It is noteworthy that since moving to merit selection,none of these states has returned to an elective system.

11. For detailed information on merit plans in eachstate, see JUDICIAL MERIT SELECTION: CURRENT STATUS (AJS:2003) <http://www.ajs.org/js/JudicialMeritCharts.pdf>.

Merit Selection in New York 21

The case against judicial elections has beenmade repeatedly in states that have opted formerit selection. Reformers can point to a num-ber of problems with elective judicial systems,whether partisan or nonpartisan. Because ofthe necessity of campaign contributions, judi-cial elections create the impression of judgeswho can be controlled by special interests.Voters frequently know little about judicial can-didates, and codes of judicial conduct mayplace restrictions on candidate speech.Elections may also discourage those who arereluctant to enter the political arena from seek-ing judicial office. Given the negative aspects ofjudicial elections and the concerns engen-dered by New York’s campaigns of the early1970s, it was not surprising that New Yorksought to change its method of selecting judgesfor its highest court.

It is important to acknowledge that themerit selection process is not free from politi-cal and other external influences. Studies ofjudicial nominating commissions have shownthat politics can play a part in both the selec-tion of commission members and in theirdeliberations.12 Likewise, retention elections,which are a feature of most merit plans, arenot always free from the involvement of spe-cial interests and expensive, negative cam-paigns.

13 Nonetheless, two thirds of states use

merit selection to choose some or all of theirjudges.

THE ROAD TO REFORM

It took very few contentious elections inNew York to motivate reformers to pushthrough merit selection for the state’s highestcourt. Until the 1970s, New York had not seenmany contested elections for seats on its high-est court. Unpleasant elections for the positionof chief judge of the court of appeals in 1913and 1916 had motivated the major parties tocross endorse the senior associate judge in elec-tions for chief judge when a vacancy in the posi-tion occurred. Over time, the parties began tocross endorse candidates in associate judgeraces as well. It was the replacement of this sys-tem with contested elections that led NewYork’s high court races to become noisier andnastier.

In 1967, New York changed its election lawsto allow candidates to challenge party choicesin primaries and to seek access to the ballotthrough petition. By the early 1970s, the newrules led to unconventional candidates appear-ing on the ballot for the court of appeals. In1972, for example, Nannette Dembitz becamethe first woman candidate for the high courtwhen she won the Democratic primary withoutthe party’s support. In 1974, a wealthy lawyerwith no judicial experience named JacobFuchsberg defeated Harold Stevens in theDemocratic primary. Stevens, the first African-American on the court of appeals, had beenappointed to fill a midterm vacancy. Both theAssociation of the Bar of New York City and theDemocratic Party opposed Fuchsberg, but hedefeated Stevens again in the general election,in which Stevens ran as a Republican. The newrules also gave rise to elections of unaccus-tomed rancor.14

Although a change to New York’s constitu-tion required legislative approval, the legisla-ture took little action on judicial selectionreform even after the media and the publicbegan to show interest following the electionsof 1972 and 1974. The advocacy of several polit-ical forces created support for the 1977 reform.

12. See Richard A. Watson & Rondal G. Downing, THE

POLITICS OF BENCH AND BAR: JUDICIAL SELECTION UNDER THE

MISSOURI NONPARTISAN COURT PLAN (1969); Beth M.Henschen, Robert Moog, & Steven Davis, JudicialNominating Commissioners: A National Profile, 73 JUDICATURE

328 (1990); and Joanne Martin, MERIT SELECTION

COMMISSIONS: WHAT DO THEY DO? HOW EFFECTIVE ARE

THEY? (ABA, 1993).13. See Traciel V. Reid, The Politicization of Retention

Elections: Lessons from the Defeat of Justices Lanphier and White,83 JUDICATURE 68 (1999).

14. For a complete account of the acquisition and lossof party control of the selection process, see LukeBierman, Legal Development: Preserving Power in PickingJudges: Merit Selection for the New York Court of Appeals, 60ALBANY L. REV. 339, 343-345 (1996).


These forces included the governor, the chiefjudge of the court of appeals, the state senate,editorial writers, civic groups, and bar associa-tions. Among these groups and individuals,Governor Hugh L. Carey and Chief JudgeCharles D. Breitel were key galvanizing forces.

Governor Carey prodded the legislature toact on the proposed constitutional change aspart of a larger reform of New York’s judiciarythat included centralizing the state’s court sys-tem.15 To change the constitution, the meritselection amendment needed to be passed intwo consecutive legislative sessions. GovernorCarey gained initial passage of the legislation in1976 by calling a special session of the legisla-ture to take up the issue of judicial reform.According to one observer, by holding a sessiondevoted to this single issue, Carey “really held[the legislators’] feet to the fire and madethem pay attention to the issue.”16 In 1975,Carey had established by executive order judi-cial nominating commissions for interim vacan-cies on the state’s trial courts and the court ofappeals and for all vacancies on the appellatedivision of the supreme court (New York’sintermediate appellate court).17 Carey’s sup-port for merit selection was so strong that heexpected the measure to be extended quicklyto judges of the lower courts, as well.18

Carey was elected governor in 1974. Histenure came at a very difficult time for the stateof New York. In his first two years in office,Carey had to tackle the near-bankruptcy of NewYork City. He also had to bring the state’s budg-et into solvency after a period of expansivebudgets. Carey played a critical role in savingNew York City from financial ruin. By the timehe began to push for the court reform packagein 1976, he had achieved a great deal of popu-larity throughout the state for his handling ofthe fiscal crisis.19 The support of a governor atthe height of his popularity would prove anasset of immeasurable value in attaining meritselection.

Carey’s call for reform was bolstered bycivic organizations and editorial writers and by

task forces established by the state senate andthe New York State Bar Association. The bipar-tisan senate task force drafted the initial courtreform package that was submitted for legisla-tive approval. The task force found that thestate was split between upstate voters whoopposed merit selection and voters in New YorkCity who supported the idea. The task force,which included senators from all regions, pro-posed merit selection for the high court andlocal referendums to determine whether trialcourt judges would be elected or appointed.One aspect of the reform package that ensuredsenate support was the provision providing forthe advice and consent of the senate in judicialappointments. The Association of the Bar ofthe City of New York and the New York StateBar Association also threw their supportbehind merit selection for the court of appealswith local referendums.20

In addition, several civic organizationscame out in favor of the change including theLeague of Women Voters, the Citizens Union,and the Committee for Modern Courts, whichwas a coalition of thirty-eight civic and legalgroups. The League of Women Voters and theCommittee for Modern Courts, in particular,spent time in Albany, button-holing legislatorsand explaining the importance of the issue.21

Chief Judge Breitel, who first began advo-cating for merit selection in 1973 during hisown election to the court, also continued toargue for the measure. Richard Bartlett, for-mer chief administrative judge of New York,

15. Id.16. Telephone interview with Richard Bartlett, former

chief administrative judge of New York (Aug. 28, 2002).17. Judges of the appellate division of the supreme

court, which was created by constitutional amendment in1894, have always been chosen through gubernatorialappointment. Governors Cuomo and Pataki have contin-ued to use nominating commissions to select appellatedivision judges.

18. Amendment Victory Spurs Court Change, N.Y. TIMES,Nov. 11, 1977, at A1.

19. Daniel C. Kramer, THE DAYS OF WINE AND ROSES ARE

OVER: GOVERNOR HUGH CAREY AND NEW YORK STATE 40-120(University Press of America:1996).

20. Greenhouse, supra note 5.21. Bartlett, supra note 16.


and Fern Schair of the Fund for ModernCourts both point out how pivotal Breitel’sleadership on the issue was. According toBartlett, “It was Breitel who kept up the steadydrumbeat for court reform from 1974 to1977.”22

Schair also points to the important roleplayed by Cyrus Vance, who then served as pres-ident of the Association of the Bar of New YorkCity. From 1974 to 1976, Vance presided overthe gubernatorial task force that came up withmany of the recommendations that were even-tually included in Governor Carey’s reformpackage. Schair points out that Vance’s behind-the-scenes fundraising work was also crucial tothe effort. These funds allowed Schair to travelto radio stations throughout the state to beinterviewed about court reform. Schair saysthat there was falloff on the referendum votebecause many voters did not understand theissues involved, but that “because of Cy Vance,we got the message out to the type of peoplewho would care about court reform and whothen voted for the referendum.”23 ElizabethHubbard, who headed the New York League ofWomen Voters’ efforts in the lobbying cam-paign, suggests that the bar was able to raise somuch money for the campaign because theleadership of the bar became convinced thatnontraditional judges like Fuchsberg and oth-ers would harm the court of appeals’ strongreputation.24 Schair believes that winning overmore voters outside of New York City thanwould have otherwise taken an interest in thereferendum was critical to its final passage.25

The proposed reform also received strongsupport from editorial writers, especially thoseof the New York Times. In throwing the prestigeof that institution behind the effort, the news-paper used the traditional rhetoric of thosewho argue for merit selection. A 1976 editorialurging the legislature to pass Governor Carey’sjudicial reform package during the special ses-sion argued that the reforms “would permitNew York to catch up with half the states in thenation that ha[d] restructured their judicialsystems along modern lines.”26

Despite the heft of the individuals andinstitutions that supported merit selection, itwas not clear that the measure would achievepopular support. There were a number ofinfluential organizations opposed to the meas-ure. More than 100 judges across the stateformed an organization called the Ad HocCommittee for the Preservation of an ElectedJudiciary, and its leader Justice Frank D.O’Connor referred to the reform proposal as“elitist and undemocratic.”27 The NationalAssociation for the Advancement of ColoredPeople joined in the opposition, suggestingthat merit selection would lead to the selectionof fewer minority judges.28 A number of smallerbar groups also dismissed the reform, saying itwas merely an attempt by “the Brahmins of thebar” to reassert control over judicial selectionthat had been lost with the election reforms of1967.29

In spite of these detractors, the measurepassed the state legislature in 1976 and 1977and won popular approval in 1977. Judges ofthe court of appeals began to be selected underthe new system in the next year. The passage ofmerit selection for the court of appeals did notpresage a change to merit selection at all levels,however. Although subsequent governors andNew York City mayors have established judicialnominating commissions by executive order,there has been no movement toward a consti-tutional change to merit selection for NewYork’s lower courts.

22. Id.23. Telephone interview with Fern Schair of the Fund

for Modern Courts (Aug. 28, 2002).24. Hubbard, supra note 4. Hubbard says that the

League had been working for merit selection since 1955,but 1977 was the one time “everyone seemed to be payingattention.”

25. Schair, supra note 23.26. A Chance for Justice, N.Y. TIMES, May 24, 1976, at 27.27. Tom Goldstein, Proposal to Name Judges is Opposed,

N.Y. TIMES, Nov. 3, 1977, at 35.28. Id.29. Id.



According to those involved in the reformefforts that led to merit selection, the success ofGovernor Hugh Carey’s judicial reform pack-age seemed to herald the beginning of areform period that would eventually lead tomerit selection at the trial court level. After thesuccess of the constitutional referendum, ChiefJudge Charles Breitel said of extending meritselection to all judges, “it won’t happen tomor-row, but it will come eventually.”30

Merit selection has not been extended totrial court judges by statute or constitutionalamendment in New York, despite the expecta-tions of Governor Carey and Chief JudgeBreitel. Governor Mario Cuomo did not displaythe same commitment to trial court reformthat Governor Carey had. According toBartlett, “Governor Cuomo believed the onlyway to finish court reform was to have a consti-tutional convention.”31 Short of a constitutionalconvention, Cuomo was willing to let judicialreform remain on the backburner, although hesupported merit selection bills as they camethrough the legislature. In 1988, when a meritselection bill was proposed in the legislature,one legislator joked that he had “a betterchance of growing wings and flying over thecourthouse” than merit selection for NewYork’s trial courts had of passing.32 ElizabethHubbard of the League of Women Voters saysthat Cuomo’s aides convinced the League toseparate the issue of court merger,33 anothercourt reform measure considered during the1980s, from merit selection because “meritselection was too hard to sell.”34

And how have supporters of the reformassessed the differences between judges chosenbefore and after the reform? Soon after thechange, the New York Times expressed some dis-appointment in the nominating commission’sfirst choices for the position of chief judgewhen Breitel retired in 1978. According to a1978 editorial, the “undiscovered excellence”promised by merit selection proponents

“turn[ed] out to be easier for reformers topromise than for a real-life commission to pro-duce.”35 Although it considered the nominat-ing commission’s recommendations to beacceptable, the Times noted that the nameswere familiar ones that “all could have beenproduced by the old system, though even polit-ical slate-makers might have tried for more vari-ety.”36

In terms of quality of performance, the fig-ures interviewed for this chapter who wereactive in the merit selection reform movementhave found no radical differences betweencourt of appeals judges chosen before and afterthe introduction of merit selection. However,in their opinion, there may be personality dif-ferences between the judges who came beforeand after the reform. Bartlett believes thatsome of the judges who have been appointedwould not have been elected to the courtbecause they are not temperamentally suited torunning in statewide elections.37

Almost all of the candidates recommendedby the nominating commission have had previ-ous judicial experience. While this change cer-tainly promotes more seasoned judges, it alsomeans that the nominees have had contact withlocal party leaders.38 Because most supremecourt judges are elected in New York,39 judges

30. Amendment Victory Spurs Court Change, N.Y. TIMES,Nov. 10, 1977, at A1.

31. Bartlett, supra note 16.32. Richard Barbieri, Judges Back Merger, Oppose Merit

Selection, MANHATTAN LAWYER, Apr. 12-18, 1988, at 5.33. “Court merger” would have merged trial courts to

clean up jurisdictional overlaps, eliminating the trialcourts below the supreme court. The proposed reform hasnot passed, although it has garnered more support thanmerit selection.

34. Hubbard, supra note 4.35. How—and What—to Name Judges, N.Y. TIMES, Dec.

26, 1978, at 18.36. Id.37. A good example of a judge who may not have been

electable was Joseph Bellacosa, who at his swearing in saidthat he “considered his appointment ‘a miracle,’ becausehe had never aspired to it.” Ron Davis, Cuomo Appoints 7thAppeals Judge, NEWSDAY, Jan. 6, 1987, at 04.

38. See Dorothy Samuels, New York’s Long and SorryTradition of Judicial Elections, N.Y. TIMES, Nov. 14, 2002, fora discussion of the political connections of supreme courtjudges.


have experience working the same rooms aspoliticians. The professionalization of candi-dates for the high court, therefore, may comeat the cost of the exclusion of talented politicaloutsiders.40

The court of appeals has become morediverse in the period since merit selection. In2003, there were four women, one of whom wasof Latino descent, and an African-Americanman on the court. This diversity is a stark con-trast to the record before the 1977 reform. Nowoman had been elected to the court ofappeals. Harold Stevens, the first African-American on the court, was appointed to fill aninterim vacancy but was defeated in the 1974elections. Governors Cuomo and GeorgePataki have deliberately created diversity onthe court through their appointments. Whilethe vast majority of the candidates recom-mended by the nominating commissions havebeen white men, these governors have optedfor diversity.41 Whether elections would havecreated a similarly diverse court is open todebate.

In recent years, some observers haveexpressed concern about the low number ofapplications for open positions on the court ofappeals. When a vacancy occurred in 2002,such a small number of candidates applied forthe position that the commission on judicialnomination extended the application dead-line. Some potential candidates said that they“did not bother to apply because it appearedthat only a couple of candidates with close con-nections to the Pataki administration had anyreal chance of being selected.”42 Whether thisconcern will prove a lasting one remains to beseen.

How successful merit selection has been inNew York depends on one’s criteria of success.

If the goal of merit selection is to achieve theappearance of a judiciary that stands apartfrom the rest of the political system and sparesjudges from being involved in contentious elec-tions, New York’s switch to merit selection forits court of appeals seems to have succeeded. Ifthe goal of merit selection is to eliminate poli-tics from the process of selecting judges, NewYork may have had less success. If the goal ofmerit selection is to produce a judiciary that ispatently superior to an elective one, there is lit-tle empirical evidence to support this assertion,although the court of appeals has becomemore diverse under merit selection.

39. Not all supreme court judges are elected. Court ofclaims judges, who are appointed by the governor, are fre-quently made “acting” supreme court justices.

40. Bierman, supra note 14, at 354-356.41. Id. at 349.42. John Caher, Read Tapped for Court of Appeals, N.Y L.J.,

Jan. 7, 2003, at 1.

In 1994, the Mississippi legislature adopteda sweeping reform of the state’s judiciary. Thechanges, which did not require amendment ofMississippi’s constitution, increased the size ofthe newly created court of appeals to reduce abacklog of cases before the state’s supremecourt, added new judgeships and redistrictedexisting jurisdictions, and switched most judi-cial elections from partisan to nonpartisan con-tests. The change from partisan to nonpartisanelections was not the preferred option of thelawmakers who introduced the judicial reformlegislation. The package, when first introducedin 1993, envisioned a merit selection plan forjudges of the new court of appeals and theeventual adoption of a similar system for theMississippi Supreme Court.

Many in the reform camp thought thereform legislation had the necessary votes topass until a “crusty, rural lawmaker”2 intro-duced an amendment changing the method ofselection for members of the court of appealsto elections. The legislator remarked, “If we inthis house have to go around ‘tending all thesespeakings and eat cold sweet ‘taters to keep ouroffices, then [the court of appeals judges]

ought to also.”3 As Mike Mills, who was thenchair of the house judiciary committee, haspointed out, the argument of the legislation’sopponents boiled down to this: “The demo-cratic process is nearly intolerable for us. So itmust be good for judges.”4 This reasoningproved persuasive to Mississippi lawmakers andled to the creation of a new slate of judicialelections in Mississippi.

This anecdote reveals both the desire forand the difficulty of judicial selection reform inMississippi. Legislative reform of Mississippi’sjudiciary had been pursued for over a decadebefore the passage of the 1994 legislation, butsweeping changes in judicial selection wouldprove difficult to achieve. The switch to non-partisan elections represented a compromisebetween reformers, who hoped for a more far-reaching change such as merit selection for theappellate courts, and legislators, who preferredthe elective system.

PARTISAN TO NONPARTISAN ELECTIONS

IN THEORY AND IN PRACTICE

In the United States, there have been twotrends toward the adoption of nonpartisanjudicial elections. The first took place in theProgressive Era among western and midwest-ern states, in which switching from partisan tononpartisan judicial elections was a reaction toperceived faults of partisan elections. Statesthat had introduced partisan elections to

Partisan to Nonpartisan Elections in Mississippi

“A first step toward improving the current electoral process is to eliminate partisan contests.”1

1. JUSTICE FOR HIRE: IMPROVING JUDICIAL SELECTION, ASTATEMENT BY THE RESEARCH AND POLICY COMMITTEE FOR

ECONOMIC DEVELOPMENT 5 (2002).2. Bill Minor, Judicial Election Reform Thwarted by Cold

‘Taters, SUN HERALD, Nov. 8, 2001, at C3.3. Id.4. Michael P. Mills and Lee Waddle, Judicial Independence

in Mississippi, 20 QUINNIPIAC L. REV. 709, 712 (2001).

4


ensure accountability among judges found totheir dismay that party machines and powerfulinterest groups came to dominate judicialelections. California, for example, switchedfrom partisan to nonpartisan elections in 1911to reduce the influence of the political partiesand the railroad conglomerates that had dom-inated the state’s politics since the 1860s.5 Inmaking the switch, California was part of alarger movement. Washington was the firststate to introduce nonpartisan elections ofjudges in 1907, and by 1917 twelve states,mainly in the West and Midwest, had done thesame.6 A second trend toward nonpartisanelections has taken place in the South over thelast thirty years. Florida, Kentucky, Georgia,Louisiana, Mississippi, North Carolina, andArkansas have all introduced nonpartisan judi-cial elections for some or all of their judges inthe past three decades. Currently, twenty-twostates have nonpartisan elections for somelevel of court.7

Several of the midwestern and westernstates that initially tried nonpartisan elections,such as Iowa, Kansas, and Colorado, subse-quently changed to merit selection.Nonpartisan elections seem to have found thehappiest home among a northern tier of states(Minnesota, North and South Dakota, Oregon,and Washington8) that made the change dur-ing the Progressive Era9 and have not changedtheir systems since, and in the modern South.

The primary argument for nonpartisanjudicial elections is that they remove partisanconsiderations from the selection process whilepromoting accountability. Judges may then beselected based upon their qualifications ratherthan their party affiliation. In this regard, non-partisan elections succeed, at least to the extentthat they “make the party affiliation of thejudge a less important determinant of the elec-tion outcome.”10 Nonpartisan elections are saidalso to reduce the frequent turnover on thebench that occurs in some partisan electionstates since, according to some observers, “[i]nnonpartisan election states, good judges are

usually unopposed.”11 A recent study of statesupreme court elections confirms that theretend to be lower turnover rates in nonpartisanelection states, with more incumbent judgesrunning unopposed and fewer judges beingdefeated when they do face opponents.12 Athird rationale offered for nonpartisan elec-tions is that judges in nonpartisan electionstates will feel less compelled to adopt ideolog-ically extreme positions in order to appeal tostrong partisans.13

In spite of the arguments in their favor,nonpartisan elections are described by somecommentators as “possess[ing] all of the vicesof partisan elections and none of the virtues.”14

5. John H. Culver & John T. Wold, Judicial Reform inCalifornia, in JUDICIAL REFORM IN THE STATES 140 (AnthonyChampagne & Judith Haydel, eds., 1993).

6. Robert Darcy, Conflict and Reform: Oklahoma JudicialElections 1907-1998, 26 OKLA. CITY U. L. REV. 519, 524(2001). The first jurisdiction in which judicial candidatesappeared on the ballot without party labels was CookCounty, Ill.

7. This figure includes all states in which judicial candi-dates are listed without party affiliation on the generalelection ballot. In some of these states, however, judicialelections are nonpartisan in name only, since the nomi-nation process—if not the selection process—is dominat-ed by political parties. In Michigan, supreme court candi-dates are nominated at party conventions, and, in Ohio,judicial candidates are nominated in partisan primaryelections. Some commentators believe that the selectionprocess in Idaho should also be described as partisanbecause of the tone of the 1998 and 2000 elections. See,e.g., Selection of State Judges Symposium Transcripts, JudicialElections and Campaign Finance Reform, 33 U. TOL. L. REV.335, 338 (2002).

8. Michigan and Ohio also adopted nonpartisan elec-tions during this period, but see id.

9. Three other northern states, Montana, Idaho, andWisconsin, could be added to this list, but they did notadopt nonpartisan elections during the Progressive Era.

10. Anthony Champagne, The Selection and Retention ofJudges in Texas, 40 SW. L. J. 53, 63 (1986).

11. Thomas E. Brennan, Nonpartisan Election of Judges:The Michigan Case, 40 SW. L. J. 23, 26 (1986).

12. Melinda Gann Hall, State Supreme Courts in AmericanDemocracy: Probing the Myths of Judicial Reform, 95 AM. POL.SCI. REV. 315 (2001). Hall compares nonpartisan and par-tisan elections for state supreme court judges nationwidebetween 1980 and 1994 and shows that, overall, judges innonpartisan elections are more likely to run unopposedand less likely to be defeated.

13. Anthony Champagne, Interest Groups and JudicialElections, 34 LOY. L. A. L. REV. 1391, 1427 (2002).

14. Peter D. Webster, Selection and Retention of Judges: IsThere One ‘Best’ Method?, 23 FLA. ST. U. L. REV. 1, 26 (1995).

Partisan to Nonpartisan Elections in Mississippi 29

One criticism leveled against nonpartisan elec-tions is that they deprive voters of an importantsource of information about judicial candi-dates—their party affiliation. In the absence ofthe party cue, voters tend to base their deci-sions on name recognition and incumbency.15

Voters in nonpartisan elections may also relyon other factors to determine their candidatechoice, such as their perceptions of the candi-date’s ethnicity, sex, or religious background,an “eye-catching nickname,” or even ballotposition.16 The lack of party affiliation as asource of information may also affect voterturnout. As one scholar of judicial electionsnotes, “the party label on the ballot has beenfound to stimulate voter participation in theabsence of specific information about the can-didates and the issues.”17 As a result, “partisanjudicial elections are far better attended by vot-ers than nonpartisan and merit retention elec-tions.”18 Critics of nonpartisan elections alsomaintain that judicial campaigns in nonparti-san election states can be more expensive thantheir counterparts in partisan election statesbecause, without party assistance, candidatesmust spend large amounts of money to reachvoters.19

Perhaps the most serious charge made

against nonpartisan elections is that “politicalparties, whether reflected on the ballot or not .. . continue to impact judicial campaigns.”20 Insome states, judicial elections are nonpartisanonly to the extent that candidates appear onthe ballot without party affiliations; there areno proscriptions against political partiesendorsing judicial candidates or making con-tributions to their campaigns. In other states,party endorsements and/or contributions tojudicial candidates are prohibited by state law,or court rules restrict judicial candidates fromseeking or using party endorsements, accept-ing contributions from political parties, and/oridentifying themselves as members of politicalparties. Yet even in some of these states, partiesmay be active in the selection process.

The constitutionality of regulating partyinvolvement in judicial elections has been ques-tioned. In 1990, a federal appeals court struckdown California’s ban on party endorsementsof candidates for nonpartisan offices,21 and afederal district court in 2002 invalidated aMississippi provision that barred political par-ties from contributing to and endorsing judi-cial candidates.22 Although a federal appealscourt upheld provisions of Minnesota’s judicialcanons that restrict candidates from identifyingthemselves as members of political parties andusing party endorsements,23 other restrictionson judicial candidate speech have been foundto violate the First Amendment. In Weaver v.Bonner,24 the U.S. Court of Appeals for theEleventh Circuit struck down Georgia’s ban onjudicial candidates personally soliciting cam-paign contributions and publicly stated sup-port, and in Republican Party of Minnesota v.White,25 the U.S. Supreme Court invalidatedMinnesota’s proscription against judicial candi-dates announcing their views on disputed legalor political issues.

In general, courts are rejecting the argu-ment that differences between the roles ofjudges and other elected officials necessitatedifferences in the regulations that govern theirelection campaigns. With each court decision,

15. Philip L. Dubois, FROM BALLOT TO BENCH: JUDICIAL

ELECTIONS AND THE QUEST FOR ACCOUNTABILITY 79-81(1980). The use of incumbency as a cue in nonpartisanelections may be the reason that fewer incumbent judgesare defeated in these states. See Hall, supra note 12.

16. Id. at 81.17. Philip L. Dubois, Accountability, Independence, and the

Selection of State Judges: The Role of Popular Judicial Elections,40 SW. L. J. 31, 43 (1986).

18. Id.19. Champagne, supra note 10, at 63.20. Mark A. Behrens & Cary Silverman, The Case for

Adopting Appointive Judicial Selection Systems for State CourtJudges, 11 CORNELL J. L. & PUB. POL’Y 273, 298 (2002).

21. Geary v. Renne, 911 F.2d 280 (9th Cir. 1990).California has nonpartisan elections for its superior courtjudges.

22. Mississippi Republican Party State Executive Committee v.Musgrove, unreported (S.D. Miss., Oct. 21, 2002).

23. Republican Party of Minnesota v. Kelly, 247 F.3d 854(8th Cir. 2000).

24. Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).25. See Republican Party of Minnesota v. White, 536 U.S.

765 (2002).


the long-term viability of efforts in nonpartisanelection states to insulate judicial electionsfrom political influences grows increasinglyuncertain.

THE ROAD TO REFORM

Throughout its history, Mississippi hasexperimented with all methods of judicialselection. The state’s original constitution of1817 left the selection of judges to the legisla-ture. In 1832, Mississippi became the first statein the nation to establish popular elections ofall judges, and, in 1868, it became one of thefirst elective states to move away from the elec-tion of judges when it adopted gubernatorialappointment with senate confirmation.Popular elections were reinstated in 1910 and1914 and have been maintained ever since.The 1994 change from partisan to nonpartisanelection of judges came about as a compromisebetween those who supported merit selectionof the judges of the new court of appeals andthose who favored judicial elections.

As in other states, concerns began to devel-op in the late 1980s and early 1990s regardingthe increasing cost of judicial campaigns inMississippi and the effect that this could haveon perceptions of the independence andimpartiality of the judiciary. These concernswere expressed by a variety of groups. In 1990,the Mississippi Commission on JudicialPerformance began recommending to boththe governor and the legislature thatMississippi judges be chosen in nonpartisanelections. The commission reiterated its sup-port for nonpartisan elections in its 1993 annu-al report, noting that it had received morecomplaints regarding judges’ political activitybetween 1990 and 1993 than it had in its firstten years of operation combined (1980-1989).26

The Mississippi Judicial Council also urged thelegislature to adopt a nonpartisan election plan.In 1992, the president of the Mississippi BarAssociation wrote that “serious problems . . . inthe method, financing, conduct and the future

of judicial elections . . . must be addressedbefore they become more serious and con-tribute to any further erosion of our judici-ary.”27 A 1994 report by the MississippiEconomic Council described partisan electionsof appellate judges as a threat to judicial inde-pendence and endorsed a merit selection andretention plan, arguing that the “highest courtsof appeal must be independent and free toapply the law without political consideration.”28

In his 1995 “State of the Judiciary” address,Chief Justice Armis Hawkins cited the high costof judicial campaigns in states such as Texasand Alabama and encouraged the legislature toact to prevent this from occurring inMississippi.

Despite the concerns in some circlesregarding the judicial selection process, theprimary motive for the 1994 judicial reformpackage was the inability of the courts to meetthe needs of Mississippi’s citizens. A 1993 studyby the Mississippi Bar’s Commission on theCourts in the 21st Century had concluded thatthe judiciary’s fundamental problems were thebacklog of cases before the state’s supremecourt, the inefficiency of the trial courts, theinadequate salaries of Mississippi judges com-pared to neighboring states, and the outdatedinformation technology used in the courts.29

The 1994 reform package’s expansion of therecently established court of appeals from fiveto ten judges,30 creation of two new circuit dis-tricts, and addition of fourteen new circuit andchancery court judgeships addressed the back-log and inefficiency issues.

26. Letter from Luther T. Brantley, III, ExecutiveDirector, Mississippi Commission on JudicialPerformance, to Senator Hainon Miller (Apr. 19, 1994).

27. Alex A. Alston, Jr., Sanctity of the Courts, MISSISSIPPI

LAWYER, Apr./May 1992. 28. Mississippi Economic Council, JUSTICE FOR SALE?

SELECTING MISSISSIPPI’S APPELLATE JUDGES 7 (April 1994).29. Mississippi Bar, LAYING THE GROUNDWORK FOR COURT

REFORM: A REPORT OF THE MISSISSIPPI BAR’S COMMISSION ON

THE COURTS IN THE 21ST CENTURY (July 1993).30. A court of appeals composed of five judges had

been created in 1993. Under the legislation that createdthe court, the judges were to be elected by the voters inNovember 1994.


The change from partisan to nonpartisanelections was not the most preferred option ofthose who pushed the 1994 legislation. Theoriginal proposal called for merit selection ofjudges of the new court of appeals, whichreformers hoped would eventually be extendedto the supreme court, but, after the “cold‘taters” speech, the adoption of merit selectionappeared unlikely. An amendment calling fornonpartisan judicial elections was introducedin the house of representatives and passed by avote of 90-32.

Mike Mills, former chair of the house judi-ciary committee,31 says that making judicialelections nonpartisan “was absolutely a com-promise between merit selection and partisanelections.” According to Mills, the desire ofreformers was “to break the judiciary away frompartisan politics,” and, after it became clearthat legislators would not accept merit selec-tion, nonpartisan elections seemed the onlyway to attain the larger objective.32

The main opponent of the switch to non-partisan elections was the black caucus. Theselegislators felt that blacks had made gainsthrough the political party process, and theyfeared that the elimination of party primarieswould negate these advances. The reformersaddressed this criticism by redistricting judge-ships and chancellorships to create more major-ity-black districts. They estimated that fifteen totwenty blacks could win circuit and chanceryjudgeships in the new districts. At the time, onlyfour of forty circuit court judges and two of thir-ty-nine chancellors were African-Americans.Based on the creation of additional majority-black districts, one African-American legislator

reported that the bill would “allow[] minoritiesto put their imprint on the judiciary.”33 A num-ber of black lawmakers wrote letters to theJustice Department in support of the reformpackage and particularly nonpartisan elections.

In April 1994, the Nonpartisan JudicialElection Act, along with the rest of the judicialreform legislation, was approved by the houseof representatives, the senate, and the gover-nor. The legislation was then submitted to theU.S. Department of Justice for pre-clearanceunder the Voting Rights Act. After a request foradditional information, the Attorney General’soffice approved the changes in September1994. The Nonpartisan Judicial Election Act34

prohibits judicial candidates from “campaign-ing or qualifying for such an office based onparty affiliation” and stipulates that the namesof judicial candidates will appear on the ballotwith “no reference to political party affiliation.”

Because it was the result of a compromiserather than an organized reform effort,because it was one aspect of a larger reformpackage, and because it required only legisla-tive rather than popular approval, theNonpartisan Judicial Election Act was passedwith less fanfare than judicial selection reformsin other states. There was also a sense that a lessthan dramatic change had been achieved.Judicial elections in Mississippi since thereform have reinforced this sentiment in theminds of many observers.


Judicial elections in Mississippi since 1994have led some to question whether movingfrom partisan to nonpartisan elections was aneffective response to reformers’ concernsabout the selection process. The reform didnot address the financing of judicial elections,and the cost of campaigns continued to rise. In1996, eleven candidates for four seats on theMississippi Supreme Court spent a total ofmore than $1.4 million,35 with substantial con-tributions coming from trial lawyers and thebusiness community.36 The level of PAC involve-

31. Mills was later appointed, then elected, to theMississippi Supreme Court and now serves as a federal dis-trict judge.

32. Telephone interview with Mike Mills, former chairof the house judiciary committee (Sept. 26, 2002).

33. Id.34. Miss. Code Ann. § 23-15-974 - 23-15-985.35. Mary Libby Payne, Mississippi Judicial Elections: A

Problem Without a Solution?, 67 MISS. L.J. 1 (1997).36. Business Exerts Influence in Supreme Court Races,

CLARION-LEDGER, Feb. 11, 1996, at 1.


ment in these elections directed the legisla-ture’s attention to the need for regulation ofjudicial campaign financing.37

In late 1996 and early 1997, both the legis-lature and the Mississippi Bar held public hear-ings to discuss remedies for expensive judicialcampaigns. Following the hearings, legislativeproposals were introduced to set limits on con-tributions to judicial candidates and tostrengthen disclosure requirements. The billsthat were eventually approved by the legisla-ture in April 1998 limited individual and PACcontributions to candidates for the supremecourt and court of appeals to $5000 andcapped contributions to candidates for allother courts at $2500.38 The legislation alsomandated more extensive disclosure of cam-paign contributions and expenditures.

Unfortunately, the campaign finance regu-lations that were eventually enacted in 1999have had little impact on money in judicialraces. In 2000, nine candidates for four seatsraised nearly $3.4 million,39 and the 2002 elec-tion saw the most expensive campaign in thestate’s history for a single seat on theMississippi Supreme Court.40 In addition, the1999 legislation could not curb independentspending by special interest groups. In 2000,the U.S. Chamber of Commerce spent nearly$1 million on television advertising favoringfour Mississippi Supreme Court candidates.41

Expenditures by trial lawyer groups broughtthe total in “soft” money in the 2000 judicialelections to an estimated $1.5 million.42 In the2002 elections, the Chamber itself did notsponsor any advertisements, but some com-mentators speculate that it financed the morethan $500,000 worth of television ads present-ed by a group called the Law EnforcementAlliance of America.43 Nine other groups alsoran ads in 2002, most of them devoted to tortreform advocacy or opposition.44 According tosome observers, taking parties out of the selec-tion process in Mississippi—at least to theextent that judicial candidates appear on theballot without party affiliation—has led to

increased involvement by special interestgroups and single-issue organizations who areclosely aligned with the parties.

In addition to addressing the financing ofjudicial campaigns, another provision of the1999 legislation amended the NonpartisanJudicial Election Act to prohibit political par-ties from contributing to or endorsing judicialcandidates. Governor Kirk Fordice vetoed thelegislation because of his concern that the banon party contributions and endorsements vio-lated the First Amendment, but the legislatureoverrode the veto in January 1999. In 2002, afederal district judge agreed with Fordice, strik-ing down the ban as unconstitutional.45

Reformers in Mississippi have sought toaddress problems with judicial elections fromother angles. In 2001, Chief Justice EdwinPittman proposed changes to the code of judi-cial conduct that were eventually adopted in2002. A new disqualification provision allows aparty to file a motion to recuse a judge when anopposing party or attorney is a major donor tothe judge’s election campaign.46 A “majordonor” is defined as someone who, in the

37. Reed Branson, Campaign Reform Measure ReceivesApproval in House, COMMERCIAL APPEAL, Feb. 1, 1997, atA12.

38. Miss. Code Ann. § 23-15-1021.39. Roy A. Schotland, Financing Judicial Elections, 2000:

Change and Challenge, 2001 L. REV. MICH. ST. U. DET. C. L.849 (2001).

40. Three candidates for a single seat raised nearly $1.7million. Beverly Pettigrew Kraft, NATIONAL CENTER FOR

STATE COURTS, 2002 APPELLATE COURT RACES IN MISSISSIPPI:THE CANDIDATES, THE ISSUES, AND THE BACKDROP (Nov. 22,2002).

41. The Chamber refused to file reports as to howmuch it spent or who its contributors were, asserting thatits expenditures were for issue advocacy rather than insupport of particular candidates. A federal district courtdisagreed, but the court of appeals ruled that theChamber did not need to file disclosure statements.Chamber of Commerce of U.S. v. Moore, 288 F.3d 187 (5th Cir.2002).

42. Judicial Elections: Longer Term Should be OK’d Nov. 5,CLARION-LEDGER, Oct. 25, 2002, at 10.

43. Michael Orey, Business Targets Judicial Race in ‘TortMecca,’ WALL ST. J., Oct. 30, 2002, at B1.

44. Elizabeth Amon, Courting the Vote, NAT’L L. J., Oct.28, 2002, at A1.

45. See supra note 22.46. Code of Jud. Conduct, Canon 3E(2).


judge’s most recent election campaign, con-tributed more than $2000 in the case of appel-late judges or more than $1000 for otherjudges.47 The rule change also limits the periodduring which candidates’ campaign commit-tees can accept contributions,48 creates the spe-cial committee on judicial election campaignintervention to address allegations of campaignmisconduct,49 and requires judicial candidatesand their election committee chairpersons totake a two-hour course in campaign practices,finance, and ethics.50

In addition to the amendments to the judi-cial canons, a constitutional amendment onthe ballot in 2002 would have lengthened theterms of circuit and chancery court judgesfrom four to six years. Longer terms mean thatjudges are not required to campaign for elec-tion as often. In spite of active support fromPittman and the Mississippi Bar Association,the measure failed by a 61-39 margin.

As observed in the introductory quote tothis chapter, nonpartisan elections can be animportant first step in depoliticizing the judi-cial selection process. However, as theMississippi experience illustrates, additionalmeasures such as campaign finance reformmay be required, and new problems such as theincreased involvement of special interestgroups may arise. With the 1999 legislation,Mississippi lawmakers demonstrated a willing-ness to consider incremental reforms. Inamending the supreme court rules that governjudges’ behavior during campaigns, Pittmanshowed reform leadership as well. The toneand conduct of future elections will determinewhether stronger measures are required to pre-serve the perception of judicial independencein Mississippi.

47. Note that these amounts are lower than the contri-bution limits established in the 1999 legislation.

48. Code of Jud. Conduct, Canon 5C(2). Contributionsare prohibited “earlier than 60 days before the qualifyingdeadline or later than 120 days after the last election inwhich the candidate participates during the election year.”

49. Code of Jud. Conduct, Canon 5F.50. Code of Jud. Conduct, Canon 5F(7).

Arizona is a state with a long history of try-ing to find the best way to evaluate the per-formance of its judges. The State Bar ofArizona began to evaluate appellate leveljudges in 1958. In 1974, the state switched tomerit selection for its appellate and trial courtsin its two most populous counties, Maricopaand Pima.2 The switch to merit selectionincreased the sentiment among the state’slawyers and legislators that a judicial retentionevaluation program was necessary. The legalcommunity wanted retention elections to func-tion precisely as advocates of merit selectionbelieve they should—as a means of makingjudges accountable to the electorate. Francis J.Slavin, chair of Arizona’s committee on judicialevaluation at the time of the switch to meritselection, maintained that “merit selectionwithout judicial evaluation is like one handclapping without the other—it’s the flip side ofthe coin.”3

In 1974, at the time of the merit selectionreform, the state bar decided to make its per-formance evaluations of judges more profes-

sional.4 In consultation with judges and withassistance from the Survey ResearchLaboratory of Arizona State University, the barasked its members for their opinions aboutjudges. The surveys asked lawyers to assessjudges’ age, health, and judicial integrity andto rate judges in various categories. They alsoasked lawyers to decide whether the judgesdeserved to remain in office. The pollsreviewed all judges every two years, whetherthey faced a retention election or not. The onlychange in the survey took place in 1992, whenthe question regarding whether the judgeshould be retained in office was omittedbecause the bar decided this question shouldbe left to the voters. Lawyers filled out thesesurveys in every election cycle from 1974 to1992.

For several reasons, Arizona’s legislators,judicial officials, and the public found the barsurveys wanting. All lawyers could fill out ques-tionnaires on any judge, regardless of whethera respondent had spent any time in a judge’scourtroom. The public also treated the adviceof lawyers with skepticism because of inherentdistrust of the bar. Some judges disliked thesurveys, believing that the polls boiled down toa popularity contest. Finally, because of budgetconstraints, the results of the surveys were notwidely publicized. Because most of the surveyswere positive and because the public was fre-quently unaware of their results, no judgeswere voted out of office between 1978 and

Retention Evaluation in Arizona“Judicial retention evaluation programs are a key component of

efforts to make judicial retention elections more meaningful contests by providing objective, survey-based information on the performance of judges standing for retention.”1

1. Seth Andersen, Judicial Retention Evaluation Programs,34 LOY. L.A. L. REV. 1376, 1376 (2001).

2. The county population cutoff for merit selection is250,000. Counties with populations less than 250,000 havethe option of adopting merit selection.

3. Quoted in A. John Pelander, Judicial PerformanceReview in Arizona: Goals, Practical Effects and Concerns, 30ARIZ. ST. L.J. 643, 655 (1998).

4. Before 1974, the bar surveys were informal and theresults were not tabulated by a professional researchorganization such as the Survey Research Laboratory.

5


1992. Some cynical observers referred toArizona’s judicial selection system as “meritprotection.”5

With this background, both the supremecourt and the legislature began to investigatebetter methods of evaluating the performanceof Arizona’s judges. In 1991, after studying theissue for three years, the supreme court begana pilot project on judicial performance review.Yet the committee assigned to the project dis-agreed about the best way to organize a judicialperformance review program. While the judgesdickered over the details, the Arizona legisla-ture, faced with the complaints of women’sgroups and Latinos that merit selection treatedthem unfairly, came up with its own solution.The legislators passed a resolution proposingamendments to Arizona’s constitution thatmade several changes to the merit selection sys-tem, including requiring judicial retentionevaluation, enlarging the judicial nominatingcommissions that recommended candidatesfor selection, and making the discovery of qual-ified minority and female judicial candidates apriority of the commissions. The resolution,which had to be approved by the electorate,passed as Proposition 109 in the 1992 generalelection. As a result, Arizona is the only statewith a constitutionally mandated retentionevaluation program.6

RETENTION EVALUATION IN THEORY

AND IN PRACTICE

In 1985, the American Bar Associationestablished its Guidelines for the Evaluation ofJudicial Performance.7 Partly in response tothese guidelines, six states that use merit selec-tion have officially instated judicial retentionevaluation programs to improve the judiciaryand to provide voters with more informationabout judges.8 In 1976, Alaska became the firststate to conduct judicial performance evalua-tions. Five other states—Arizona, Colorado,New Mexico, Tennessee,9 and Utah—havesince adopted similar programs. The composi-

tion of the evaluation commission and thestructure of the evaluation process vary fromstate to state, but the programs share the samegoals.

Arizona’s commission on judicial perform-ance review (CJPR) can be used as an exampleof how the commissions work in the six meritselection states.10 The Arizona Supreme Courtappoints the thirty members that make up theCJPR, based on applications and recommenda-tions from the public. A majority of the com-mission’s members must be non-lawyers, and amaximum of six can be judges. Arizona’s com-mission is the largest of the six. Alaska’s com-mission, by contrast, has only seven members:three lawyers, three non-lawyers, and the chiefjustice. Members of the Arizona CJPR servefour-year staggered terms, which is typical of allsix commissions,11 and may serve up to twoterms.

The CJPR reviews judges both midwaythrough their tenure on the bench and beforeretention elections. The midterm evaluationsare confidential and used primarily for the ben-

5. Pelander, supra note 3, at 661.6. See Pelander, supra note 3, for an in-depth discussion

of the events leading up to the adoption of judicial per-formance review in Arizona..

7. A.B.A. Special Comm. on Evaluation of JudicialPerformance, GUIDELINES FOR THE EVALUATION OF JUDICIAL

PERFORMANCE (1985).8. All six programs have been established by law or

court order and therefore maintain official status.Andersen, supra note 1. Other states perform judicial per-formance reviews not intended for the electorate. Forexample, New Jersey, whose governor appoints and reap-points all judges, uses judicial performance review only toimprove the performance of judges.

9. Tennessee uses the retention evaluation program forits appellate courts, the only courts in the state that use amerit selection system.

10. There are differences among the commissions interms of the numbers of commissioners, whether diversityis required among commissioners, who is surveyed (Utah,for example, does not survey non-lawyers) and how often,and when surveys are conducted. See Kevin M. Esterling &Kathleen M. Sampson, JUDICIAL RETENTION EVALUATION

PROGRAMS IN FOUR STATES: A REPORT WITH RECOMMEND-ATIONS 23-29 (AJS, 1998), on the differences between theAlaska, Arizona, Colorado, and Utah programs. Andersen,supra note 1, at 1381-1382, includes information on NewMexico and Tennessee, as well, but only discusses evalua-tion procedures.

11. Andersen, supra note 1, at 1383.

Retention Evaluation in Arizona 37

efit of each judge as a self-improvement tool.The public evaluations done before retentionelections are published and distributed to vot-ers to provide them with information abouteach judge standing for retention. Accordingto the supreme court’s rules, the CJPR must“disseminate its findings and recommenda-tions in an election year to the public no laterthan three days after the primary election.”12

A feature that makes Arizona uniqueamong the six states with retention evaluationprograms is the conference team.13 Before eval-uation results are published and distributed tovoters, they are released to the judge, who thenhas the opportunity to discuss the results with aconference team. Conference teams consist ofa lawyer, a non-lawyer, and a judge appointedby the supreme court.14 If the judge being eval-uated has concerns about the results, he or shecan address them at this time. The conferenceteam also works with each judge to devise a self-improvement plan.

The CJPR surveys those who come into con-tact with judges on a regular basis, includingjurors, litigants, witnesses, attorneys, and courtstaff. Respondents rank judges on a scale ofzero to four, with “zero” being unsatisfactoryand “four” being superior, in several differentareas: legal ability, integrity, judicial tempera-ment, communication skills, and administra-tive performance. Those completing surveysmay opt to write narrative comments abouteach judge. The narrative comments are notmade public but may be shared with the judgeduring the conference team process. As inother states with retention evaluation pro-grams, surveys sent to lawyers differ from thosesent to non-lawyers. Questions for lawyers focusmore on legal ability, whereas questions for lit-

igants, witnesses, and jurors focus on tempera-ment and court administration.15 To ensureanonymity, a third-party data center processesthe responses collected and transcribes the nar-rative comments before the CJPR receives theresults. The CJPR then publishes the surveyresults and reports whether judges meet or donot meet performance standards.

All states with retention evaluation pro-grams face their “most daunting task”16 afterthe surveys are finished—getting the results tothe public. In Alaska and Utah, evaluationresults are included in the voter informationpamphlets sent to all voters, and in Arizona andColorado, evaluation results are sent to votersalong with information about ballot proposals.Alaska, Colorado, New Mexico, and Tennesseealso publish commission reports in the states’newspapers. In all six of the states that evaluatejudges standing for retention, the evaluationresults are available online and in public placessuch as libraries, courthouses, and county clerkoffices. As we shall see, Arizona has spent thedecade since the institution of its retentionevaluation program working to ensure that theresults reach as many voters as possible.

THE ROAD TO REFORM

From the time of its passage in 1974 untilthe passage of judicial performance review in1992, the merit selection system in Arizona wasunder an almost constant barrage of criticism.17

In 1978, legislative opponents of merit selec-tion attempted to pass a bill that would havereturned the state to judicial elections. In 1981,there was a petition drive, supported by theMaricopa County Republican Committee, toreinstate judicial elections. The effort failed in1982 after attaining only 70,000 of the 83,000signatures needed to put the measure on theballot. In both 1982 and 1984, legislative effortsto replace merit selection with elections failed.In 1986, two bills were introduced that wouldhave made the appointment of judges subjectto senate confirmation, but the bills died in

12. R. P. JUD. PERF. REV. ARIZ. 6(e).13. Andersen, supra note 1, at 1385.14. The judge being evaluated may peremptorily chal-

lenge one member of the proposed conference team.15. Andersen, supra note 1, at 1384.16. Id.17. John M. Roll, Merit Selection: The Arizona Experience,

22 ARIZ. ST. L.J. 837, 885-90 (Winter 1990).


committee. In 1987, a legislative proposal thatcame closer to passage than any of the previousbills would have mandated senate confirmationand would have increased the number of laymembers of the nominating commissions. In1988, a victims’ rights group called on voters toreject all judges up for retention.

During the same period, dissatisfactionwith bar polls prompted Arizona’s judiciary tolook at other ways to rate the performance ofjudges. Many observers before 1992 consideredthe bar surveys “the weak link in the meritselection system.”18 The main problem was thatthe public seemed unaware of the surveys’results. In 1988, an Arizona judge, who wasarrested for misdemeanor marijuana posses-sion in Texas, was re-elected despite not beingrecommended by the bar. In 1990, anotherjudge who received a negative rating was alsore-elected. A 1989 task force on the Arizonacourts concluded that “most voters neverlearn[ed] the results of the bar poll.”19

In this context, Chief Justice Frank Gordonappointed the commission on the courts in1988 to study the public’s relationship to thecourts. The commission, made up of thirty-fourlawyers, judges, and citizens, recommendedthat a committee composed of both lawyersand non-lawyers study how to establish aneffective retention evaluation program. Thesupreme court agreed and set up the commit-tee on court reform, which established the sub-committee that developed a pilot project onjudicial performance evaluation in 1991.

The subcommittee, called the committeeon judicial performance review, came up with aplan that called for county-level committees tosurvey lawyers and the public about judgesevery two years. The committees would thentabulate the responses and make recommenda-tions to the public regarding whether votersshould retain the judges. This plan did not sitwell with many judges, who disapproved of thesecrecy of the committees’ operations andthought that the survey results should be madepublic. The judges opposed to the plan feared

that, unless the results were made public, theevaluation system would be used “to punish”judges. The Arizona Republic agreed with thejudges who were critical of the plan, saying, “Itis easy to see how these closed-door panelsmight turn into star chambers, criticizingjudges for no good reason . . .”20

There was so much dissent within the groupthat the committee could not agree on guide-lines for assessing judges before the 1992 elec-tions. The primary issue concerned how muchof the evaluations’ results to reveal to the public.Members of the committee at first only wantedto release survey information regarding whethera judge should be retained. Later, at anothervote, the committee agreed to reveal bothnumerical results and narrative comments aboutjudges. The votes had razor-thin ten-to-ninemargins. The legislature, facing various con-cerns about merit selection, decided to create itsown judicial performance review initiative.

The legislature felt compelled to actbecause Arizona’s merit selection system hadagain come under attack in the 1992 legislativesession. The complaints of legislators whobelieved that merit selection was undemocraticwere familiar, but supporters of merit selectionalso faced the growing disaffection of Latinoand women legislators who felt that merit selec-tion prevented their constituencies from attain-ing judgeships. A senate committee hadapproved a bill that would have returnedArizona’s two most populous counties, Pimaand Maricopa, to an elective system.

To fine-tune the merit selection system, thelegislature came up with three reforms. Thesereforms were put into the language ofProposition 109, which became an amendmentto the Arizona Constitution. The nominatingcommissions that recommended names to thegovernor would be expanded from threelawyers and five non-lawyers to five lawyers and

18. Pelander, supra note 3, at 660.19. Id. at 661.20. Evaluating Judges: The Corcoran Plan, ARIZONA

REPUBLIC, Nov. 6, 1992, at A18.


ten non-lawyers. The commissioners chosenwould “to the extent feasible, represent thediversity of the state.”21 The commissions wouldalso “consider the state’s diversity” in selectingnominees; “however the primary consideration[would] be merit.”22 The third reform provi-sion was the establishment of a judicial reten-tion evaluation program.

Because a mandate to seek out moreminorities and women and judicial retentionevaluation are separate issues, it may seem sur-prising that the two concerns were dealt with aspart of the same reform package. ArthurGarcia, an Arizona senator at the time, explainsthat the bill garnered the support of both con-servatives and minority and female legislators.According to Garcia, every group concernedabout the judiciary got something it wanted:“Hispanics wanted to see more of their ownchosen as judges; conservatives wantedaccountability and wanted performance review;and supporters of merit selection thought theyhad diminished the threat to merit selection.”23

Proposition 109 became law after 58 percent ofvoters supported the measure in the generalelection of 1992, making Arizona the only state

with a judicial retention evaluation programmandated by its constitution.


The goals of judicial retention evaluationprograms are enhancing voter knowledge ofjudges, improving judicial performance,increasing citizen confidence in the judiciary,and acting as a counterweight to politicalattacks on merit selection.24 One of the mostunique features of the CJPR in Arizona is theextensive effort it has made to reach out to thebroader public. In sharp contrast to bar associ-ation polls, which usually survey attorneys only,the CJPR surveys a broad spectrum of individu-als who interact with judges, including litigants,jurors, and witnesses. By surveying more thanone constituency, the CJPR can make a morecredible analysis of a judge’s performance.25

Arizona also provides access on the statesupreme court website to public input surveysand to applications for membership on theCJPR and on conference teams. On the samewebsite, the state offers an overview of the judi-cial performance evaluation process and aGuide to Reading Data Reports.26

The CJPR has struggled to find the best dis-tribution method for the results and recom-mendations that the survey produces. Arizonashares this dilemma with states that have simi-lar programs. In 1994, the commission issuedpamphlets in English, Spanish, and sevenNative American languages.27 The commissionsaturated the state with pamphlets that con-tained so much information that many citizensreported, “it was too much, I didn’t read it.”28

The next election year, 1996, found the com-mission trying a different approach to distrib-uting information. This time the pamphletsincluded only the bottom-line recommenda-tion about each judge. A telephone numberwas given and a website created as a means forvoters to obtain more information about surveyresults. This dissemination effort was largelyunsuccessful. An exit survey of Phoenix-area

21. ARIZ. CONST. art. 6 § 36 (A).22. ARIZ. CONST. art. 6 § 36 (D).23. Telephone interview with Arthur Garcia, former

Arizona state senator (Oct. 18, 2002).24. Esterling & Sampson, supra note 10, at 5. According

to one observer in Arizona, merit selection in that state isunder less threat than it was before 1992 because ofProposition 109’s mandate to put minorities and womenon the bench. According to Arthur Garcia, (see Garcia,supra note 23) conservative Republican legislators in everysession have drafted a bill calling for a return to judicialelections but, unlike the situation in 1992, have notreceived the support of Hispanic or female legislatorsbecause more women and minorities are gaining seats onthe bench under merit selection. Judicial retention evalu-ation appears to have made little difference in terms oflegislators’ satisfaction with merit selection; some legisla-tors oppose it on principle, and for others, the goal ofdiversity matters more than performance evaluation.

25. David Brody and Nicholas Lovrich, Jr., JudicialPerformance Evaluations and Judicial Elections: Informing theVoter and Protecting the Judiciary, 3 GOV’T L. & POL’Y 37 (Fall2001).

26. http://www.supreme.state.az.us. 27. Esterling & Sampson, supra note 10, at 94.28. Id. at 96.


voters during the 1996 elections revealed thatonly 30 percent were aware of the performanceevaluation program and the information onjudges that was available to them.29

In the 2000 and 2002 election cycles, theCJPR seemed to find the right recipe for thecontent and distribution of its reports. The2000 elections were the first for which the CJPRrecommendations were included in the public-ity pamphlets about ballot propositions, whichthe state mails to voters.30 The ArizonaSupreme Court website also provided links in2000 and 2002 to CJPR recommendations. The2002 online pamphlet was a 24-page, easy-to-read document that provided the recommen-dation of the CJPR for each judge standing forretention and included a brief description ofsurvey responses from attorneys, jurors, liti-gants, and witnesses. The pamphlet also pro-filed each judge, giving educational back-ground and professional experience.

The basic conundrum for states reformingtheir judicial selection systems is finding theappropriate balance between judicial accounta-bility and independence. Judicial retentionevaluation programs have been criticized in themedia for failing to provide accountabilitysince most candidates are recommended forretention. On the other hand, some judgesworry that the programs can be a threat to judi-cial independence.

In an editorial published after the 1996retention elections—for which the commissionhad found that 55 out of 56 candidates metjudicial performance standards—PhoenixGazette columnist Mark Genrich accusedArizona’s commission of performing a “farcicalanalysis that protects incumbent judges andtells the public nothing of the important rul-ings or qualifications other than the judge‘meets’ or ‘does not meet’ judicial perform-ance standards.”31

It is true that the CJPR in Arizona, like itscounterparts in other states, recommends thatmost judges be retained in office. The commis-sion began to operate in the 1994 election

cycle, but it was not until 1998 that it deter-mined a judge “did not merit” retention.Despite critics’ complaints that the CJPR pro-tects even the weakest judges,32 there is someevidence that the prospect of retention evalua-tion motivates unsuitable judges to retire. In1994, for example, Maricopa County’s judicialperformance review commission evaluatedJudge Stanley Goodfarb. Before the state com-mission received his file, however, Goodfarbdecided not to stand for retention. Goodfarbhad a somewhat checkered career—he was sus-pended for uttering a racial slur in 1989 andinvestigated for ethical violations in 1994. Alsoin 1994, a judge who had received poor marksfrom an independent group called Citizens forJudicial Integrity decided not to seek retentionbefore being reviewed by Pima County’s com-mission.

In response to criticisms that evaluationprograms undermine judicial independence,some proponents of judicial retention evalua-tion have encouraged states to provide judgeswith adequate opportunities to discuss evalua-tion results.33 Arizona provides this opportunitythrough its conference team process. Othershave advised evaluation commissions simply toremain within the mandate they have beengiven. According to one observer of theArizona process, “so long as the focus ofArizona’s JPR program remains on the articu-lated standards and related survey topics, andso long as the commission’s role is limited to

29. Id.30. Inger Sandal, Retain All Judges, Panel Says, ARIZONA

DAILY STAR, Oct. 9, 2000. 31. PHOENIX GAZETTE, Oct. 23, 1996, at B7.32. Critics of the commission’s overwhelmingly favor-

able impression of Arizona’s judiciary can point to certainnotorious cases. In 1996, Judge Lawrence Fleischmanreceived a high performance evaluation even though thestate commission on judicial conduct had suspended himwithout pay for ethical violations. Voters kept Fleischmanin office despite widespread media coverage of his diffi-culties. Also in 1996, the CJPR did not evaluate JudgeWilliam Scholl, a judge being tried for federal tax evasioncharges, because he was suspended during the periodwhen reviews were being performed. Scholl won his reten-tion election as well. Pelander, supra note 3, at 718-20.

33. Andersen, supra note 1.


making and publicizing findings as to whetherjudges meet or fail to meet the relevant stan-dards, JPR should not seriously interfere withjudicial independence in Arizona.”34 There isevidence that judges who are more familiarwith judicial retention evaluation may view it asless of a threat to their independence. A 1996survey of judges in the four states that hadretention evaluation programs at that timereported that judges in states that had recentlyinstituted such programs (Arizona and Utah)felt more threatened than judges in states witha longer history of evaluation programs (Alaskaand Colorado).35

Although surveys of judges regarding reten-tion evaluation programs reveal a fair amountof skepticism about the process, the ArizonaCJPR appears to be doing a better job thancommissions in other states of convincingjudges that the process can be beneficial tothem. A 1996 poll of judges in Alaska, Arizona,Colorado, and Utah found that more Arizonajudges considered the appeals process to be sat-isfactory. More than 70 percent of judges inColorado and Utah and more than 80 percentof judges in Alaska were dissatisfied with theappeals process, while only 50 percent ofArizona judges were dissatisfied.36 While thisfigure is still very high, the emphasis on collab-oration with judges in the review process seemsto have reduced judicial resistance. As oneobserver has noted, “Most Arizona judges sub-ject to retention have come to accept JPR as afact of life.”37

One concern raised by judges in every state

with judicial retention evaluation is the validityof the survey results. Some judges complainthat a low response rate can skew their results.In Colorado in 2002, a judge who had receivedonly 18 evaluations—six of them negative—feltthat he was unfairly reviewed because he had areputation of severely punishing drunk driv-ers.38 Arizona deals with this issue by indicatingclearly the number of surveys filled out on eachjudge. How to get more lawyers, jurors, andothers to respond, however, is an issue thatdeserves more attention—”with a low responserate, the statistical analysis becomes more like-ly to be based on responses from those whohave an ax to grind.”39

Perhaps the biggest danger facing judicialperformance review programs in Arizona orany other merit selection state is public apathy.Voters sometimes vote for the retention ofjudges who do not meet minimum perform-ance standards. The voters seem uninterestedin learning more about candidates in retentionelections, even when elaborate efforts havebeen made to reach them. This apathy shouldnot be a criterion for judging the success ofjudicial performance review, however. As oneobserver of Arizona’s program has noted:

[T]he adage that “you can take thehorse to water but you can’t make itdrink” applies to JPR as well. All thatcan reasonably be asked or expected ofthe JPR Commission is for it to conducta full and fair evaluation of judgesstanding for retention, and timely dis-seminate its factual findings in a man-ner and mode that make them readilyaccessible, helpful, and comprehensi-ble to the average voter. If the elec-torate chooses to disregard or ignorethat information, neither theCommission nor the JPR processshould be faulted.40

34. Pelander, supra note 3, at 706.35. Esterling & Sampson, supra note 10. Thirty-three

percent of Arizona judges and 50% of Utah judges sawperformance review as a threat to judicial independence,but only 22% of Alaska and 15% of Colorado judges did.

36. Id.37. Pelander, supra note 3, at 718.38. Keep Judge Ruddick, DENVER POST, Oct. 31, 2002. A

similar case occurred in Colorado in 1996; see Kevin M.Esterling, Judicial Accountability the Right Way: OfficialPerformance Evaluations Help the Electorate as Well as theBench, 82 JUDICATURE 206 (March/April 1999).

39. Esterling, id. at 213.40. Pelander, supra note 3, at 713.

As a means of informing the electorate inan unbiased, nonpartisan manner, voter guideshave had a long history in the state ofWashington. Since 1914, voter pamphlets havebeen made available to the public by the secre-tary of state’s office. The initial voter pamphletscontained information solely on ballot meas-ures to provide voters with different perspec-tives on the measures proposed. Voter pam-phlets began to include candidate statementsand photographs in 1959. Judicial candidatesdid not appear in the voter pamphlets until1972. However, these pamphlets did notinclude all judicial positions, did not requiredisclosure of judicial candidates’ professionalqualifications, and were prepared only for thegeneral election. Providing information onjudicial candidates for the primary elections isparticularly important since many judicial racesare settled in the primaries. In Washington, asin a handful of other states that hold nonparti-san judicial elections, if a candidate receives amajority of the vote in the primary election,that candidate is elected.2

For the first time, Washington distributedin 1996 a judicial voter pamphlet for the pri-mary elections that included a full range of

information about judicial candidates andbasic information about the judiciary. The pro-duction and distribution of a voter pamphletfor the primary elections was one of the rec-ommendations made by the WalshCommission, a 24-member task force of judges,attorneys, and citizens. The commission wasformed in 1995 to study the judicial selectionprocess in Washington and to suggest improve-ments. One of the commission’s central find-ings was that “voters want more informationabout the judges they elect.”3 According to theWalsh Commission report, “In any given elec-tion, as many as 50 percent of those votingchoose not to vote for judicial candidates.”4

The commission attributed voter roll-off to alack of complete and timely information aboutjudicial candidates. To address this need, thecommission recommended that the supremecourt authorize the publication of a judicialvoter pamphlet. The court did so in the sum-mer of 1996.

VOTER GUIDES IN THEORY AND IN

PRACTICE

Voter guides are intended to provide voterswith the necessary information to decidewhether judges appearing on the ballot shouldbe elected, re-elected, or retained. Only fivestates—Alaska, California, Oregon, Utah, andWashington—routinely produce voter guidesthat contain information on judicial candidatesalong with information on candidates for otheroffices and ballot issues.5 Interestingly, these

Voter Guides in Washington“Voters’ guides have proven effective in ensuring that voters

are informed about judicial candidates.”1

1. The Way Forward: Lessons from the National Symposiumon Judicial Campaign Conduct and the First Amendment, 35IND. L. REV. 649, 656 (2002).

2. District court races are an exception. If there are twoor fewer candidates for a district court seat, a primary elec-tion is not held for that office.

3. Walsh Commission, THE PEOPLE SHALL JUDGE:RESTORING CITIZEN CONTROL TO JUDICIAL SELECTION, AREPORT OF THE WALSH COMMISSION 8 (1996).

4. Id. at 6.

6


are all states that hold either nonpartisan judi-cial elections or retention elections. Perhapsbecause the cue of party affiliation is absent inthese types of elections, these states have rec-ognized that voters need other sources of infor-mation in order to make educated choices. InAlaska and Utah, the lieutenant governor isresponsible for publishing and disseminatingvoter information pamphlets. In California andOregon, it is the secretary of state who pro-duces voter guides. In Washington, it is usuallythe office of the administrator for the courts(OAC) that produces judicial voter pamphletsfor the primary elections; the secretary ofstate’s office produces voter guides for the gen-eral election.

The judicial councils of Alaska and Utah—two states in which judges run in retention elec-tions—evaluate judges’ past performance andprovide voters with evaluation results and rec-ommendations regarding whether each judgeshould be retained. Voter pamphlets in thesestates also include photographs and biographi-cal information about each retention candi-date. California also holds retention electionsfor its appellate judges, but there is no state-authorized process for evaluating judicial per-formance. The California guide simply pro-vides information about the education and pro-fessional background of judges standing forretention. Oregon and Washington, the onlytwo judicial voter guide states with competitivejudicial elections, prepare guides for both theprimary and general elections. Oregon’s voterguides offer photographs, personal statements,and biographical information. In Washington,the judicial voter pamphlets produced for theprimary elections by the OAC contain a biogra-phical statement, a personal statement, and aphotograph;6 the pamphlets produced by thesecretary of state for the general electioninclude candidate photographs and personalstatements.7

The states that provide voter guides makeextensive efforts to reach voters with the infor-mation. All of the states post their voter guides

online. In most states, pamphlets are publishedin the major newspapers and are mailed toevery household in the state or to all house-holds with a registered voter. Many states alsomake them available at libraries, post offices,courthouses, county election offices, and otherpublic places.

Regardless of the differences across thesestates in the content and means of distributionof the voter guides, they share the commonpurpose of enabling voters to make informeddecisions in judicial races. A survey of SpokaneCounty, Washington, voters indicated thatknowledge of judicial candidates is “of primaryimportance” in both participation and voters’satisfaction that they are making an informeddecision.8 In going to the lengths they have toinform the public, the states that prepare voterguides for judicial elections have taken animportant step toward responding to voters’concerns.

THE ROAD TO REFORM

In early 1995, a random sample ofWashington voters was asked, “How do you vote

5. Alaska and Utah are two of the six states that conductperformance evaluations of judges standing for retention.The other four states—Arizona, Colorado, New Mexico,and Tennessee—provide voters with the results of theseevaluations and recommendations regarding whethereach judge should be retained. In Arizona and Colorado,evaluation information on judicial retention candidates ispublished along with information on ballot proposals. InNew Mexico and Tennessee, performance evaluationreports comprise stand-alone pamphlets. This informa-tion is made available to voters in a variety of ways, includ-ing on the Internet, in newspapers, and by mail.

6. Biographical statements are limited to 100 words,must include information about the candidate’s judicial,legal, or other related experience, and may includeinformation on the candidate’s involvement with pro-fessional and community organizations and the candi-date’s personal interests. Candidate statements are alsolimited to 100 words and may include information onthe candidate’s qualifications, endorsements, ratings,reasons for seeking judicial office, and any other rele-vant information.

7. Personal statements from judicial candidates are lim-ited to 200 words.

8. Nicholas P. Lovrich, John C. Pierce, & Charles H.Sheldon, Citizen Knowledge and Voting in Judicial Elections,73 JUDICATURE 28, 33 (1989).

Voter Guides in Washington 45

for a judge?” Two thirds of those respondingsaid they seldom had enough information onwhich to base rational electoral decisions forjudges.9 Perhaps because of this lack of infor-mation, between 30 and 50 percent of thosewho cast ballots for other candidates failed tovote in judicial races.10 The Walsh Commissionwas formed in 1995 to examine “a system inwhich the people [were] largely excluded frommeaningful participation in decisions aboutjudicial selection and tenure.”11

Chief Justice Barbara Durham, GovernorMike Lowry, and legislative officials appointedthe Walsh Commission to study “all aspects ofjudicial selection” in Washington and to rec-ommend improvements.12 Named for its chair,Seattle journalist Ruth Walsh, the twenty-four-member commission consisted of legislative,judicial, education, and community leaders.The commission focused on four aspects of thejudicial selection process: judicial qualifica-tions, judicial selection, judicial performance,and voter information.

The Walsh Commission took extensivesteps to gather the information and opinionsthat would determine their recommenda-tions.13 It examined research materials andtook testimony from a broad spectrum of inter-est groups, including the business community,labor and education groups, minority bar asso-ciations, federal and state judges, the media,and others. Because the commission was par-ticularly conscious of the role that the mediacan play in selecting judges, a survey wasmailed to media groups to request their sug-gestions for improving the selection process.The commission also hosted a town hall meet-ing that was broadcast statewide and that

allowed citizens to phone, fax, and mail theircomments. Additional citizen input was soughtthrough focus groups conducted in Seattle,Spokane, and Vancouver. Finally, the commis-sion spoke with leaders from other states thathad adopted alternatives to selecting judges bycontested election.

The Walsh Commission’s recommenda-tions, which were published in a 1996 report,included establishing citizen-based nominat-ing commissions to screen candidates forinterim appointments, setting campaign con-tribution and expenditure limits for judicialcandidates, imposing experience require-ments for judicial candidates, developing aprocess for evaluating judicial performance,and disseminating voter pamphlets for the pri-mary elections that would provide informationabout judicial candidates and a basic overviewof the judicial system. The only recommenda-tion of the commission that has been imple-mented to date is the one regarding judicialvoter pamphlets for the primaries.

In addition to judicial voter pamphlets,which are aimed at increasing voter participa-tion by improving voter knowledge, otherreforms have been suggested to address theproblem of low voter turnout in Washington’sprimary elections. One reform proposal is touse the primary elections to narrow the field totwo candidates, who would then compete inthe general election.14 Another proposal—andone that was considered by the WalshCommission—is to have all judicial races decid-ed in the primary elections. Since it is typicallythe “most informed, most civic-minded citi-zens” who participate in primary elections,these voters may be the most likely to selectqualified judicial candidates.15 In the end, thecommission recommended the publication of ajudicial voter guide.

The Walsh Commission left the details ofthe process for gathering candidate informa-tion and disseminating the guide to voters tothe supreme court. The court formed a judicialvoter pamphlet advisory committee, which

9. REPORT OF THE COURTS OF WASHINGTON (1995).10. WALSH COMMISSION, supra note 3, at 12.11. Id. at 3.12. Id. at 7.13. Id. at 7-8.14. Charles H. Sheldon & Nicholas P. Lovrich, Jr., Voter

Knowledge, Behavior and Attitudes in Primary and GeneralJudicial Elections, 82 JUDICATURE 216 (1999).

15. Id. at 218.


released its recommendations in June 1996.The committee was composed of judges fromall court levels, a representative from the stateLeague of Women Voters, and two attorneys.Based on the committee’s report, the supremecourt ordered the publication of a judicialvoter pamphlet for the September primaryelections. The voter pamphlet would includebiographical data and position statements forall candidates facing contested judicial elec-tions, along with basic court organization andelection information.

The pamphlet was prepared and distrib-uted through a public/private partnershipbetween the office of the administrator for thecourts (OAC) and Washington’s numerousdaily newspapers. Through the agreement,hard copies of the pamphlets were distributedto all daily newspaper subscribers, whichincluded 1.2 million readers. With the assis-tance of the secretary of state, the pamphletswere also available on the department’s websiteand at special kiosks in supermarkets, malls,and other public places, and a video voterguide aired on the statewide public affairscable network.


The 1996 effort to provide voters with infor-mation on judicial candidates for the primaryelections was deemed a success. A poll con-ducted immediately following the primary elec-tions asked those who had voted for judicialcandidates to compare the voter pamphlet as asource of information to other sources such asnewspaper articles and editorials, bar polls,candidate mailings, and discussions with familyand friends.16 Seventy-one percent of those whovoted for judicial candidates considered thevoter information pamphlet to be an importantsource of information.17 It was also the mostcommonly used source of information, withnearly half of those who voted for judges usingthe voter pamphlet as an information source.18

According to another poll conducted for the

OAC by a market research firm, “voters acrossthe state acknowledged [that] the JudicialVoters’ pamphlet is helpful to them . . . [andthey] would like to continue to receive this typeof guide for future judicial elections.”19

The distribution of the pamphlet was notwithout problems, however. According to onepost-election survey, 57 percent of voters neverfound the pull-out pamphlets in their newspa-pers,20 and the additional means of providinginformation about judicial candidates—thesecretary of state’s website, the cable videos,and the kiosks—were rarely used by voters.21

The survey attributed these findings to a lack ofvoter awareness that these sources were avail-able and suggested that voters’ familiarity withthese outlets would increase over time.22

Based on the success of the 1996 efforts,the supreme court and the OAC received$175,000 from the legislature to fund the pub-lication of a judicial voter pamphlet for the1998 primary elections. The pamphlet featureda new “eye-catching” design and an easier-to-read format.23 In addition, Chief JusticeDurham and Allied Daily News ExecutiveDirector Rowland Thompson wrote to newspa-per publishers and requested that articles, edi-torials, and “house” advertisements be run tocall readers’ attention to the upcoming pam-phlet.24 With the cooperation of Allied DailyNewspapers and the Washington (weekly)Newspaper Publishers’ Association, the 1998

16. An immediate post-election mail survey was con-ducted by the Division of Governmental Studies andServices of the Department of Political Science atWashington State University. A random sample of regis-tered voters in King and Spokane Counties was polled.

17. Wendy K. Ferrell, 1998 Judicial Voters Pamphlet, OACREPORTS, Aug. 14, 1998.

18. Sheldon & Lovrich, supra note 14. 19. Wendy K. Ferrell, For ‘98 Elections: Second, Statewide

Judicial Voter Pamphlets Planned, OAC REPORTS, Feb. 9,1998.

20. Ferrell, supra note 17.21. Charles H. Sheldon & Nicholas P. Lovrich,

Preliminary Report on Judicial Voters in King and SpokaneCounty 1996 Primary Judicial Elections, available at<http://www.tomphillips.com/sj77_appe.htm>.

22. Id.23. Ferrell, supra note 17. 24. Id.

Voter Guides in Washington 47

pamphlet reached more than 1.3 million dailyand weekly newspaper subscribers. An addi-tional 26,000 pamphlets were sent to locallibraries, courts, and county auditors. An elec-tronic version was available on the WashingtonState Courts’ website, and the OAC encour-aged employers and law firms to hyperlink thepamphlet on their internal networks.

According to a press release issued by theWashington State Courts after the 1998 elec-tions, judicial elections were “gaining a higherprofile,” as evidenced by increased media cov-erage and an examination of turnout rates inthe 1994, 1996, and 1998 primary elections.25 Inthe 1994 primary elections, less than 60 per-cent of those who voted cast ballots in contest-ed supreme court races. In the 1996 primar-ies—the first year that a voter information pam-phlet was published for the primary elections,this figure had increased to nearly 70 percent.In 1998, 72 percent of voters participated inthe supreme court elections. This trend cannotbe tied directly to the publication of judicialvoter guides, but it is surely more than a coin-cidence that there is a decline in voter roll-offfrom 1994 to 1996 and 1998.

The OAC, while committed to publishingthe judicial pamphlets, thought that the jobmight best be handled by the secretary ofstate’s office, the “election experts.”26

Pamphlets published by the secretary of state’soffice would also reach a larger audience, sincethey would be mailed to every household in thestate. However, a statutory change was requiredbefore the secretary of state could assume thisresponsibility. In the 1999 and 2000 legislativesessions, bills were introduced in both the

house of representatives and the senate thatcalled on the secretary of state to publish avoter guide when “at least one statewide meas-ure or office is scheduled to appear on the pri-mary or general election ballot.”27 The billswere never voted on for final passage, but in2000, the secretary of state produced an officialvoter information pamphlet for the primaryelections—the first in the state’s history.

In spite of the 2000 effort, there was still nostatutory requirement that the secretary ofstate produce a voter guide for the primaryelections. The 1999-2000 bills were reintro-duced in the 2001-2002 session.28 Secretary ofState Sam Reed spoke in support of the bills,describing a primary voters’ pamphlet as“essential to ensuring that citizens have thetools they need to make informed choices,”29

but no final vote was ever taken on the bills. Forthe 2002 elections, the judicial voter guide forthe primary elections was again published bythe OAC, with the assistance of the state’s news-papers. As in the past, the guide was availableon the Washington State Courts’ website, and avideo version featuring supreme court candi-dates was aired on the state’s public televisionnetwork.

The neutral tone of the candidate state-ments in the 2002 voter information pamphletsmet with some criticism. One judicial candi-date promised that he would “write straightfor-ward opinions that provide clear guidance onthe law,” while another described herself as“committed to ensuring that the legal system isresponsive to the citizens of [the] state.”30 Somecommentators31 had expected judicial candi-dates to be more forthcoming in light of theU.S. Supreme Court decision in RepublicanParty of Minnesota v. White.32 In White, the Courtstruck down a Minnesota canon that prohibit-ed a judicial candidate from “announc[ing] hisor her views on disputed legal or politicalissues.” Washington’s code of judicial conductdoes not contain an “announce” clause, so itscode was not directly affected by the decision,but Canon 7 does state that judicial candidates

25. Judicial Races Gaining in Profile, Washington Courtspress release, Nov. 4, 1998.

26. Ferrell, supra note 19.27. SB 5644, HB 1847, 1999-2000 Biennium.28. SB 5616, HB 1721, 2001-2002 Biennium.29. House Panel Approves Primary Voters Pamphlet Bill,

Secretary of State press release, Feb. 20, 2001.30. Peter Callaghan, Wanna-be Judges Expound Pure

Pablum, TACOMA NEWS, Sept. 1, 2002, at B01.31. See, e.g., id.32. 536 U.S. 765 (2002).


should not “make statements that commit orappear to commit [them] with respect to cases,controversies or issues that are likely to comebefore the court.”33 In White, the SupremeCourt expressly declined to rule on the consti-tutionality of the “commit” clause, but theCourt’s finding that restrictions on candidates’speech impinge on their First Amendmentrights could have a broad impact on the con-duct of future judicial elections. It will be inter-esting to see how the White decision will affectthe content of judicial voter guides inWashington and other states over time.

It appears, on balance, that one of theWalsh Commission’s goals—to increase theamount of information available to votersabout judicial candidates—has been accom-plished through the publication of judicialvoter guides for the primary elections, whetherby the secretary of state or the OAC. The judi-cial voter pamphlets seem to have become anaccepted, and appreciated, part of the electionlandscape in Washington.

33. Wa. R. CJC 7, 7(C)(2).

Documents

Judicial Selection Reform: Examples