Political partisanship and an ever growing divide between the two major parties in the political landscape are becoming an increasingly popular topic of discussion. This partisanship continues to create more political gridlock in Congress, an increased level of animosity between the two parties, and impact other areas of political study that change American society. Another issue that has been on the minds of a lot people revolves more around Judicial Partisanship.
Federal and State courts across the United States find their judges through varying manners of appointments and elections, and in many cases, these elections are partisan, which requires these judges to declare where they stand politically before they can do their job to uphold the law. This manner of choosing how seats in the courts are filled has received varying amounts of criticism and praise, for different reasons, but partisanship in the courts has always been a part of the system, even in appointed positions.
In the Supreme and Federal Courts, the President of the United States is in charge of nominating individuals to fill an empty seat, and Congress is then in charge of approving or denying that nomination. These nominations are almost always judges who tend to vote according to the political leanings of the President even though it is not a partisan position. Either way, elected or appointed judges have partisan leanings and have a predictable pattern of voting in major court decisions. However, judges are not always bound by party lines, especially in the Supreme Court.
So how often do judges vote against their partisan viewpoint, and what makes them vote that way? These questions have been addresses on a number of occasions by multiple political scientists in different ways both directly and indirectly. What I have been unable to find is a direct incorporation of the two questions that takes into account a number of different factors. This review will address those articles that I have found, starting with the reasoning and criticism for judicial elections, shifting into how often judges change their voting behavior, and ending with a focus on why they vote the way that they do.
The debate about whether elections or appointments are better has been going on since the earliest part of our nation’s history. Georgia was the first to decide to elect judges instead of just appointing them in 1789 and in the mid 1800’s a majority of states that use elections now switched. Currently 39 of the 50 United States have some form of electoral system for selecting their judges and of those 39, 13 are completely nonpartisan and 7 additional states have some partisan and some nonpartisan elections. The other 19 are completely partisan and the last 11 states use appointments instead of elections, like the Supreme and federal courts.
However, some research suggests that these nonpartisan elections are going to become less prevalent across America in the coming years. Roy Schotland’s article in 2003 titled “To the Endangered Species List, Add: Nonpartisan Judicial Elections” discusses the coming about of partisan and nonpartisan elections and then moves on to talk about how legislation from Congress as well as a the political culture in the Legislature are going to continue making nonpartisan elections more and more difficult to use in general, and more particularly in the judicial side of things. He also discusses the pros and cons of partisan elections.
His major pro says that “party labels are “cues” that may inform voters of the candidate’s general judicial philosophy, and party membership brings some element of accountability. ” As for the cons he says that “judges are different from other elective officials in ways that render (a party) judging artificial, even misleading, and… a threat to public confidence in judicial neutrality. Second… a strong top-of-ticket candidate means that a number of fine judges will lose their seats simply because… they are in the “wrong” party. ” His major view point is that while he believes that the cons outweigh the pros for artisan elections, the trend is heading the other way.
Even in nonpartisan elections, judges are voicing their political views, receiving donations and funds from conservative or liberal sources, spending a lot of money on campaigns, and finding themselves restricted by legislation. That legislation can either shut them down to the point of not being able to campaign at all or it drives them to push for partisan elections in order to compete in the election at all. In Malinda Hall’s article “State e Courts in American Democracy: Probing the Myths of Judicial Reform” from 2001, she seems to have a slightly different view point on the matter.
While it is unclear from her article whether or not she likes partisan or nonpartisan elections better, what is clear is that she does not think that the arguments used by judicial reformers are valid, and her data supports that theory. She does agree with Schotland in that she thinks that even in nonpartisan and even in retention elections. She says that the evidence shows that nonpartisan elections “fail to insulate incumbents from partisan politics or other contextual forces. Both state-level partisan competition and election-specific partisan competition have dramatic effects on the vote received by incumbents.
In fact, the simple act of having a partisan challenger reduces the vote share of incumbents by about 22%, even though partisan labels do not appear on the ballot. ” She also says that for partisan elections, accountability is a big issue because any “variation in ideological distance is associated with changes in the electoral performance of incumbents,” with some values being quite large. She also says that in electing judges, either through partisan or nonpartisan means, the incumbent is always more likely to win which takes away from the argument against partisanship in the judiciary.
Having established that partisanship plays a big role in the judicial selection process, it also is safe to say that it plays a big role in judicial decision making as well. This is important because while the judicial branch is supposed to uphold the law though judicial neutrality, they also play a big role in policy making. In Robert Dahl’s article, “Decision Making in a Democracy: The Supreme Court as a National Policy-Maker” back in 1957, he discussed this topic in-depth, explaining that, particularly the Supreme Court, has the ability to change legislation or influence Congress’s decision, even in the face of countering a Majority Rule.
Brown v Board of Education’s unanimous 9-0 ruling in 1954 is a prime example of this where the judges, many of whom had been appointed by much more conservative Presidents changed public policy regarding segregation in the schools, but through and unanimous vote, also changed the ideology, at least temporarily, of some of the judges. Bernard Schwartz’s article “Chief Justice Earl Warren: Super Chief in Action. Talks about how the judicial session came to an end before a formal vote was cast, and the vote was 5-4 in favor of desegregation but Chief Justice Vinson, was not ready to overturn Plessy v Ferguson. He died in between the two sessions and Justice Warren was able to talk the 3 remaining dissenters into changing their vote because of the nature of the legislation and his leadership in general.
So while partisanship plays a big role in judicial decision making and the judiciary can have an impact on policy making, both in States and particularly in the Supreme Court, this means that being either an elected or an appointed judge really is a political positon. However, it is a political position that is considered a neutral position by the general public. So the question comes up again, how often do they change their supposed political views and what leads them to do so?