How it works
Ironically, when states first began electing judges in the mid-1800s, they did so out of “the concern that gubernatorial appointments gave rise to cronyism,” explained Charles Geyh, a law professor at Indiana University.
Over the past few decades, states have begun returning to appointment systems. Some states, seeking a compromise between elections and appointments, do both: Judges are appointed, then run unopposed in retention elections to keep their seats.
In 26 states, judges reach the states’ highest appellate courts through appointment by the governor. In an effort to avoid cronyism, in most of these states a nominating commission — whose members are appointed by the governor, state legislative leaders, state bar associations or high court judges — generates a list of names from which the governor can choose.
Each state’s process varies slightly. In some states, the governor’s nomination must also be confirmed by state legislators, similar to the federal process where judges are confirmed by the U.S. Senate. In California, the governor makes an appointment that is later confirmed by a three-member commission. In Massachusetts, the governor can reject the list of nominees and ask for more.
In two states, Virginia and South Carolina, the legislature appoints judges to the state supreme courts.
In the other 22 states, supreme court justices are initially elected to the bench. But when a justice steps down mid-term in 20 of these states, the governor gets to appoint a replacement.
In several of these states, judges have a tendency to step down before the end of their term.
All in the timing
In Texas, for example, supreme court justices are elected every six years. But of the nine justices currently on the court, Republican Gov. Rick Perry has appointed six whose predecessors stepped down before election time.
In Minnesota, another election state, six of the court’s current seven justices were initially appointed, again thanks to judges retiring before their terms expire.
The practice allows the governor to appoint someone with similar ideological leanings, avoiding the risk that voters might choose a candidate who is hostile to the governor’s legislative agenda.
A sitting judge almost always prevails.
“One of the things the studies show is that incumbency is the biggest advantage of all. It’s bigger than money,” said Geyh. Once appointed, incumbents are “almost undefeatable later on.”
Alabama Justice Main stood for election in 2012 unopposed.
Main said money had nothing to do with his appointment. He was chosen, he said, because both Lyons and Riley were familiar with his work.
“Both of them had a good opportunity to evaluate my strengths and weaknesses as a lawyer, and they both knew that I planned to run for Justice Lyons’ seat when he retired anyway,” Main said. “It wasn’t a secret that I wanted to be on the Supreme Court.”
Cash for gavels?
Dozens of current state supreme court justices have been political contributors to the governors who appointed them, according to records.
Among state supreme court judges who contributed the most was New York Court of Appeals Judge Robert Smith. Between April 1999 and October 2002, Smith and his wife Dian gave $60,000 to former Gov. Pataki’s campaign, state records show. They also gave $51,000 to the state Republican Party.
In November 2003, Pataki chose Smith from a list of seven people recommended by the state’s nominating commission to fill a vacancy on the state’s highest court.
Smith was a trial lawyer from Manhattan. He had argued before the U.S. Supreme Court, but he had no experience as a judge, unlike three of the other names on the nominating commission’s list, so Pataki’s choice surprised observers at the time.
Smith declined to comment, and Pataki did not respond to requests for comment. But at the time of the appointment, Pataki insisted that he wasn’t aware of Smith’s political leanings before nominating him. At Smith’s confirmation hearing in 2004, he told a Senate committee that he “never got anything except courtesy in exchange for contributions.”
Two years later, then-Iowa Gov. Tom Vilsack, a Democrat, appointed attorney Brent Appel to the Iowa Supreme Court. Appel had never been a judge, but he gave roughly $30,000 to Vilsack’s campaign between May 2000 and May 2003.
David Wiggins, appointed by Vilsack to the court in 2003, gave nearly $19,000 to Vilsack’s campaigns, together with his wife, Marsha.
Wiggins and Appel declined to comment for this story.
Vilsack, now secretary of the U.S. Department of Agriculture, was limited to picking from among the three names Iowa’s nominating commission offered to him, said spokesman Matthew Paul.
“When choosing among three candidates given to him, Governor Vilsack always chose whom he believed to have the most extensive legal knowledge and an absolute commitment to fairness,” Paul said in a written statement.
Even in states where a nominating commission gives the governor a list of names and the state senate has to confirm the governor’s choice, governors still manage to get allies on the bench.
In Hawaii, for example, former Republican Gov. Linda Lingle appointed Mark Recktenwald to the Hawaii Supreme Court in 2009. Recktenwald had made nine contributions to her campaign, totaling $7,500, between 2002 and 2006, according to data from the National Institute on Money in State Politics.
Recktenwald "had an established record of public service that was well known to Governor Lingle," Hawaii court spokeswoman Tammy Mori said in an emailed statement. Before his appointment, Recktenwald's experience in state government included three years in Lingle's cabinet as the director of the state Department of Commerce and Consumer Affairs.
Political soulmates get gavel
Governors also frequently seek out political allies when making judicial appointments.
In 2010, the Minnesota Supreme Court ruled 4-3 that then-Gov. Tim Pawlenty, a Republican, had overstepped his executive authority when he tried to cut state agency budgets without legislative approval.
University of Minnesota law professor David Stras filed a friend-of-the-court brief in the case supporting Pawlenty’s side. Eight days after Pawlenty lost, he named Stras to fill a vacancy in the Minnesota Supreme Court. Simultaneously, Pawlenty promoted to chief justice then-Associate Justice Lorie Gildea, who had also supported Pawlenty’s legal argument.
State Democrats criticized the appointments as rewards to his political supporters.
“Stras gets it wrong from a legal point of view, but nonetheless gets promoted by getting appointed to the Minnesota Supreme Court,” said David Schultz, an adjunct professor at Hamline University and the University of Minnesota Law School. “Just the timing and having done that brief do suggest that it was rewarding someone just for advocating the correct party line for the governor.”
A representative for Pawlenty did not respond to requests for comment, and a representative of Stras and Gildea declined to comment.
New Jersey Gov. Chris Christie has been accused of playing politics by NOT appointing justices.
New Jersey Supreme Court justices are appointed by the governor and confirmed by the state senate. At the end of a seven-year term, the justices must be reappointed. It has been traditional for governors to reappoint sitting justices unless there is evidence of unethical behavior.
But in 2010, Christie did not reappoint Justice John Wallace Jr., who was originally appointed by Democratic Gov. Jim McGreevey. Since then, each of Christie’s nominees to the court has been part of a battle between the Republican governor and the Democrat-controlled state Senate.
A Christie spokesman referred to the governor's past statements that the New Jersey Supreme Court had "overstepped its role."
"Even before I officially became governor, I made clear it was my intention to reshape the court," Christie said at a press conference in August. "That is the right and the prerogative of any governor, Republican or Democrat. It is how our judicial system is set up."
Now the court’s liberal chief justice, Stuart Rabner, is believed to be at risk. Rabner’s term ends in June.
New Jersey State Bar Association President Ralph Lamparello warned that Christie’s maneuvers put the independence of the state supreme court at risk, especially if judges at all levels of the state judiciary start changing their votes out of concern for their job security.
“You don’t remake the court by getting rid of good judges and justices,” Lamparello said.
He compared the New Jersey court to the U.S. Supreme Court.
“Obviously for a Republican to appoint [Justice Antonin] Scalia or [Justice Clarence] Thomas, they obviously side with the political beliefs of the then-president, but can you imagine saying, ‘I’m a Democratic president now, and Scalia, you’re off the Court’?” he asked. “That’s not the way to run a republic.”
Friends of the guv
Many governors have made a habit of appointing to the bench not just their political allies, but people who were formerly on their payroll.
In 2008, for example, Pawlenty appointed Christopher Dietzen, who served as Pawlenty’s lawyer during his 2002 campaign for governor and defended him against a campaign finance violation charge that year.
A representative for Dietzen declined to comment.
Perry appointed his chief of staff, Jeffrey Boyd, to the Texas Supreme Court in 2012. Boyd is on the ballot for the first time this year. Boyd said the fact that Perry was familiar with his work was a major factor in Perry’s decision to appoint him to the court.
He first met Perry when he was working in the state attorney general’s office, before Perry was governor.
“When Gov. Perry became governor there were a few occasions when I interacted with him, and his senior staff,” he said.
When Perry’s campaign was sued by 2006 Democratic gubernatorial nominee Chris Bell, Boyd said he was brought on to offer some advice. Five years later, he became Perry’s general counsel, eight months after that, his chief of staff, and a little over a year after that, a supreme court justice.
A representative for Perry did not respond to requests for comment.
“The whole system is built around the likelihood that governors and other appointing authorities will choose people they know, people who have supported them,” said Stephen Gillers, an expert in judicial ethics at the New York University School of Law. “It’s not purely meritocratic. It never has been and never will be.”
The advocacy group Common Cause advocates for appointments, rather than elections, but policy counsel Stephen Spaulding recognizes that neither system is perfect.
“Judicial elections are rife with opportunities for special interests,” he said. “At the same time, there’s a concern that there can be chummy, smoke-filled, back-room deals that are cut to appoint justices that are equally friendly to outside special interests.”