A New Era for Judicial Retention Elections: The Rise of and Defense Against Unfair Political Attacks

The judicial-merit selection and retention system for appointing judges to the bench was designed to emphasize selection based on the judge’s qualifications and to minimize the influence of partisanship and politics in both the selection and retention process. Since 2010, increasingly strident and frequent political attacks on state supreme court justices facing judicial-merit retention elections present real dangers to a fair and impartial judiciary. These attacks are inherently different from the challenges facing the judiciary in states where supreme court justices are selected in contested judicial elections, especially those states that have partisan elections. Recent judicial-merit retention elections of state supreme court justices across the country demonstrate the danger that arises when justices are targeted for defeat based solely on disagreement with a judicial decision. Although only one political attack in recent years has been successful, even the unsuccessful attacks may influence how the public perceives courts and diminish public confidence in the fair and impartial administration of justice. Surveys show that most citizens want fair and impartial judges who will provide equal justice to all. However, the public has limited familiarity with the way judges reach judicial decisions and even less familiarity with the purpose of the judicial-merit retention system. Even when survey respondents agree that judges should not promote a political agenda and that every citizen deserves fair and equal treatment under the rule of law, those opinions are soft and shift quickly based on political rhetoric about judges ignoring public opinion or rendering decisions that do not reflect the will of the people. This Essay examines recent judicial-merit retention elections that became rough-and-tumble political races and highlights the particular vulnerabilities judges face when trying to defend against political attacks. Because state supreme court justices targeted for defeat have limited ability to defend themselves, it is imperative that the legal profession remain at the forefront of defending against politically motivated attacks on a fair and impartial judiciary and proactively engage in informing voters of what is at stake