State supreme court justices, uh interpret the Constitution,
the statutes in their states, and then they also make the common law rules in
their states.
The purpose of the state supreme court is to be the final arbiter for all cases that
are decided involving state law or state constitutions.
Every state has at least one state supreme court, with the exception of Texas and Oklahoma,
who have two.
At the founding of our country, everyone used political appointment.
The federal government did, and the states did.
Some states used legislative, some states used gubernatorial appointment.
In legislative appointment systems, the state legislature is responsible for appointing
and re-appointing judges in that state.
Gubernatorial appointment systems are most similar to the federal system.
In these systems, the governor is able to appoint a judge of his or her choosing.
And that judge is subject to confirmation by the state senate.
In the early 1800s, states began to move away from political appointment and start electing
their judges with partisan elections.
This was a time when the country was becoming much more enthralled with democracy.
Ordinary people having more say over what their government was doing was becoming a
popular philosophy.
So as democratic theory was becoming more popular, many, many states switched from political
appointment to partisan elections.
By the time we get to the Civil War, the vast majority of states are using partisan elections
to pick their judges.
In partisan elections, candidates are nominated by political parties, either in a primary
or convention.
And run in the general election with the party affiliation of these candidates on the ballot.
So voters know at the ballot box when they're making their selection which candidate is
endorsed by Democratic Party and which candidate is endorsed by the Republican Party.
After the Civil War, uh, in the late 1800s and early 1900s, there was a movement in the
United States called the Progressive Movement.
This movement was a good government movement, frankly.
They thought that there was a lot of corruption in politics.
And they wanted government to be more transparent and less corrupt.
And so they tried many things to cleanse the democratic process of the corrupting influences
of, uh, party politics.
And so one of the first things they did with judges was, they decided to try nonpartisan
elections.
In nonpartisan elections, the parties do not nominate candidates, although in some cases
they do endorse them.
And when voters go into the ballot box, they do not know which candidate, if any, is endorsed
by the Democratic Party or the Republican Party.
You could have two Democrats running for a seat, two Republicans running for a seat,
or one Democrat, one Republican.
And this is where we have kind of the dawn of the administrative state.
The progressives thought that instead of letting politics pick judges, politics could be ugly
and dirty and corrupt, let's find experts to pick our judges.
They asked a legal profession, the bar.
You're the experts on law, you tell us who our judges should be.
And that was the Missouri Plan, merit selection, the commission system.
The commission-retention system involves a judicial nominating commission which presents
the governor with a list of names, usually three to five names.
And the governor's constrained to appoint a judge from that list of names.
After a period of time, the judge stands before voters in a retention election.
The state supreme court gets the final say on what state law means.
That can mean interpreting the state constitution, statues, or it can mean making common law.
It's important to have those judges somewhat reflective of the democratic opinion
uh, in their states.
Uh, otherwise, the laws will not be made in the image of the people, uh, but will be made
in someone else's image.
There are two dimensions on which these judicial selections differ.
The first is independence versus accountability.
All methods of selection provide for some measure of ju-judicial independence
and some measure of judicial accountability.
The question is, who are they independent from, and who are they accountable to?
The second dimension is transparency versus lack of transparency.
Politics enters judicial selection at all phases, no matter what system is used.
The question is, are the politics transparent and explicit, or are they kept behind closed
doors so the public can't see them?
States should be free to pick the methods that they think wors- works best for them.
States have a right to experiment with different ways of doing things.
Um, and they should be free to do that.
Each method of selection has its strengths and weaknesses.
And so ultimately, the fact that there are a lot of different methods of judicial selection
in the states, is a testament to the fact that different voters and policymakers view
these strengths and weaknesses differently.
And this is one of the great beauties of federalism.