Originally published at: The Real Logic Behind the GOP’s New Push for Judicial Elections - TPM – Talking Points Memo
This article is part of Cafe, TPM’s home for opinion and news analysis. On August 4, Kansas voters will decide whether to replace the state’s longstanding merit selection system for Supreme Court justices with direct elections. Republicans want voters to believe the proposed constitutional amendment is just about transparency and giving the public more power over…
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The particular thing in Kansas that really irks Republicans is that we have a strong tendency to elect Democratic governors, particularly women, and the governor has the final say on judicial appointments from those presented by the nominating committee. That’s resulted in a relatively liberal supreme court that has both protected abortion and required the legislature to adequately fund public education. That’s intolerable to the GOP supermajority, so they’re taking another crack at it after getting shellacked in the 2022 abortion vote. Within a month of that beatdown, AG Kobach publicly promoted exactly this plan to elect judges as their best way to work around the clear will of the people.
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It’s a civics-textbook principle that partisan judicial elections are associated with lower-caliber judges and with corruption.
Here in Michigan, judicial elections have been nonpartisan for almost a century.
There’s a wrinkle here, though, a single exception to the official nonpartisanship. Justices of the state supreme court are nominated by political party state conventions, and then appear on the ballot “as if” they were nonpartisan. Straight-party voting doesn’t apply to this; to vote for your party’s candidates for Supreme Court, a voter has to know their names.
(Everyone says they hate this system. In the 1990s, Michigan was rated as having the worst and most partisan state high court in the nation. Nonetheless, in recent decades, there have been zero serious efforts to change it.)
Republicans used to dominate this process. But starting in 2020, Democratic nominees have won every seriously contested Supreme Court race. That’s because, since Covid, Democrats have been far more likely to vote by absentee ballot, whereas Republicans are more likely to vote in person.
The absentee ballot is like a take-home exam; the voter can look up the answers, including which party nominated each candidate. Republicans are the ones standing in the polling place, staring at the list of names and trying to remember who they were supposed to vote for.
I still think the partisan-nominating system for Supreme Court should be changed. Ideally, we should do away with electing judges altogether. But no question, it currently benefits Democrats.
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