Written by Shawn Mattox, L’26

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”[2] “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors.”[3] These words allude to one of the most important elements of a well-functioning democracy—the judicial power to review cases independently of any outside influence except for the law. State-imposed judicial elections often threaten the power of independent review.[4] This method of judicial selection has opened the door for money to flood into judicial elections and has strained public perception of the courts.[5] State legislatures must reform their judiciaries to preserve the independence of state judiciaries by adopting a merit-based system.

Section One of Article III of the American Constitution, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”[6] In addition, Article II, Section Two, Clause Two states that the president “shall have Power, … with the Advice and Consent of the Senate … shall appoint … Judges of the Supreme Court, and all other Officers of the United States.”[7] These sections of the Constitution have determined the process for judicial election for all federal judges. However, this section of the Constitution does not apply to state judges. State legislatures have adopted a variety of judicial selection methods, such as executive appointments, partisan and nonpartisan elections, merit-based and even mixes of these methods.[8]

Current Judicial Selection Models             

Executive Appointment

Under the executive appointment method, judges are selected by the governor of a state, and they are appointed to the court. [9] This method most closely resembles the federal method for judicial selection; however, no state fully mirrors the federal judicial selection method. Typically, the states that do have a form of executive appointment have additional constraints when compared to the federal judicial selection method. For example, Virginia appoints judges through the state legislature, which appoints and reappoints judges after their initial term of eight years.[10]

Election

Judicial elections had their start during the Jacksonian era of politics that saw democratic reforms in all areas of government.[11] The first half of the nineteenth century saw the majority of states adopt some form of popular elections for judges.[12] In those early days of judicial reform, many states adopted elected judges to democratize state governments.[13] The main argument for this system, as it still is today, is that having elected judges would foster trust in judges and this would exercise a more effective restraint on all government power.[14] After the widespread adoption of the election method, there came to be two categories of judicial elections. The partisan and the non-partisan methods.

Under the partisan method, the political parties nominate their judicial candidates through electoral primaries, as they would with the legislature or executive.[15] During elections, state citizens vote for judges using a ballot that identifies judicial candidates by their party affiliation.[16] Texas is one state that has maintained partisan elections for much of its judiciary.[17] In the United States, partisan elections for trial judges are held in eleven states, while eight states use partisan elections to select high court judges.[18]

Under the non-partisan method, candidates for judges are placed on the ballot through primaries or nominating conventions.[19] Political parties take an active role in campaigning on behalf of their candidate.[20] What separates non-partisan from partisan judicial elections is the ballot on election day. Voters would not see the political affiliation of the judicial candidate on the voting ballot.[21] As of 2023, fourteen states hold nonpartisan elections for judges.[22]

Merit Selection

Merit selection is a newer form of judicial selection that merges aspects of appointment and election selection. [23] This plan consists of three main elements. First is the formation of a judicial council of presiding judges to nominate candidates, the appointment from a list of nominated candidates by the state’s executive, and third the tenure of the judge is dependent on the judge winning a noncompetitive election.[24]

 This plan is referred to as the Missouri Plan, because it was the state of Missouri that first adopted this system.[25] The merit system varies from state to state, but as a general rule, an independent commission would submit a list of qualified candidates to the governor who then can appoint them with the confirmation of their legislature.[26] After a term, the judge may run for a retention election where voters decide whether the judge should remain in office.[27] After the rise in popularity of the merit plan in the 1960s, twenty-four states and the District of Columbia adopted variations of this plan by 2000.[28]        

Influence of Money

Former Texas Supreme Court Justice Bob Gammage reasoned that “people don’t go pour money into campaigns because they want fair and impartial treatment. They pump money into campaigns because they want things to go their way.”[29] Money can possibly influence elected judges, which could impede their decisions in court. Elected judges need to raise money for their campaigns, which can range in millions of dollars when, in prior years state supreme court electoral campaigns raised around $1 million.[30] The volume of money in judicial elections has detrimentally affected the public’s perception of the judges and has eroded the appearance of impartiality.

Campaigning

During a candidate during a judicial election, candidates are expected to raise an increasing amount of money to campaign during judicial elections.[31] During the late 1990s and early 2000s, the costs of judicial campaigning ballooned across the country from mere thousands to millions of dollars.[32] As a consequence of these rising campaign expenses, judges have had to use personal funds or secure funding from other sources. [33] Among private contributors are parties with interests in the cases that would come before the elected judge.[34]

The Need for Funding

Since the 1990s, the funding to run successful judicial electoral campaigns has been on the rise and even getting out of control.[35] In Alabama, the campaign costs for the state’s supreme court races increased from $237,281 in 1986 to $2,080,000 in 1996, which is an 876.59% increase over ten years.[36] Pennsylvania’s costs for judicial election campaigns spiked from $523,000 in 1987 to $2,800,000 million in 1995, which was a 535% increase in the costs of campaigning.[37] Ohio saw one of the largest shifts in costs when state judicial elections cost $100,000 in 1980 to a huge $2,700,000 million in 1986, which was a 2,700% increase in six years.[38]

Even during this time, some were realizing this changing trend away from smaller amounts of donations to larger ones.[39] Members of the Texan judiciary, such as Justice Bob Gammage and Chief Justice John Hill, have expressed their dissatisfaction with the rising tide of campaign contributions.[40] Texas Chief Justice John Hill, who served from 1985-1988, had seen the effects of campaign funding from the perspective of a Chief Justice, and in response he resigned from office.[41] After resigning, he became an advocate for judicial elective reform in Texas.[42]

Private Money Interests

Due to the low public interest in judicial campaigns, contributors who gave money for judges are very likely to be a parties interested in the electoral success of judges and part of the same bar as the elected judge.[43] Many of whom may have cases that will come before the elected judge.[44] An attorney contributing large sums to a judge’s election campaign may create a risk of bias resulting from the judge feeling indebted to the attorney.[45]

In Ohio alone, $4,100,000 in judicial electoral contributions were given to the state level Supreme Court justices running for election between 1993 to 1998.[46] Of that $4,100,000, $2,100,000 came from lobbyists and attorneys.[47] Ohio would see another spike of 61% between 1998 and 2000, as the costs of campaigning ballooned into tens of millions of dollars with much those contributions coming from parties interested in the outcome of active cases.[48]

As the costs of campaigning have increased and private interests begun to fill the need for funding, studies have demonstrated there is a correlation between campaign spending and case outcomes.[49] However, correlation does not definitively prove cases are being determined differently by the presence of money. At the same time, it is difficult to definitively determine whether a direct campaign contribution was the deciding factor for an elected judge deciding a case.[50]

Public Perception

Under judicial election systems, the candidates are forced to accept campaign funding where they can to pay for the vast expenses. Depending on state law, these sources could include individuals who may be interested parties in court cases.[51] Accepting funding from these interested parties could create the appearance of impropriety, which undermines the notion of impartiality, fairness, and judicial independence.

Pennzoil v. Texaco and Perception

One of the more well-known incidents of public perception being undermined by campaign contributions was during the proceedings for Pennzoil v. Texaco in the 1980s. [52] The case involved Pennzoil seeking damages for Texico’s alleged tortious interference with a contract between Pennzoil and the Getty Oil Company.[53] Two days after the case began, Pennzoil’s attorney, Joseph Jamail, donated $10,000 to the presiding Judge’s reelection campaign.[54] Judge Anthony Farris, the presiding judge, would report the contribution, but it did not become an issue until months later.[55] Once Texaco’s lawyers learned what had occurred, they moved to have Farris recused or disqualified on for questions on his impartiality.[56] Judge Farris refused to recuse himself, and he ruled in favor of Pennzoil. [57]

As the case progressed, more money would be contributed to different judges who were up for election. [58] Pennzoil attorneys would ultimately contribute $315,000 to different judges who were expected to rule on the case, while Texaco attorneys would contribute a total of $72,700.[59] The Texas Supreme Court refused to hear the $10.3 billion case, and Pennzoil would eventually win the case.[60] While it is entirely possible that Pennzoil won on the merits, the appearance of impropriety diluted the outcome and left the public questioning the neutrality of Texan justices.[61] Nearly a decade after this case, a 1998 survey found that 83% of Texan adults and 79% of Texan attorneys believed campaign contributions influence judicial decisions to an extent.[62]

Recommendation

In the first election cycle after the decision in Dobbs v. Women’s Health Organization and the overturning of women’s right to an abortion, these judicial electoral races have begun to garner interest comparable to other state offices.[63] During the 2021-2022 round of elections of state supreme courts across the country, political parties, interest groups, and candidates spent over $100 million on supreme court elections.[64] In addition, Kentucky, Montana, North Carolina, and Ohio saw their most expensive judicial election elections in their history.[65] As it stands, more money is entering judicial elections each election.

Judicial elections strained the independence of judges. Our idealized vision of judges as impartial decision-makers devoted to the law is now in conflict with the perception of judicial bias. Reform in state judiciaries is needed to secure their independence from politicized money and to strengthen trust in the public. A merit-based system would mitigate the possible dangers of campaign contributions, and the perception of impropriety caused by donations.[66] While the dangers posed by electoral money wont be eliminated, this system can minimize the threats by selecting judicial candidates from an independent body while also holding judges accountable to the public.[67]

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[1] Douglas Keith, The Politics of Judicial Elections, 2021-2022, Brennan Cent. for Just. (2024) https://www.brennancenter.org/our-work/research-reports/politics-judicial-elections-2021-2022.

[2] The Federalist No. 78 (Alexander Hamilton)

[3] Id.

[4] Laura Zaccari, Judicial Elections: Recent Developments, Historical Perspective, and Continued Viability, 8 Rich. J. L. & Pub. Int. 138, 139 (2004).

[5] See Zaccari, supra note 4 at 139.

[6] U.S. Const. art. III, § 1.

[7] U.S. Const. art. I, § 2, cl. 2. (The Appointments Clause)

[8] Significant Figures in Judicial Selection, Brennan Ctr. for Just.  (Apr. 14, 2023) https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection.

[9] Zaccari, supra note 4 at

[10] Va. Const. art. VI, § 7

[11] Kurt E. Scheuerman, Rethinking Judicial Elections, 72 Or. L. Rev. 459, 465 (1993).

[12] Id.; Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 Duke L. J. 623, 631 (2009); Zaccari, supra note 4, at 139.

[13]Zaccari, supra note 4, at 139; see also Scheuerman, supra note 11, at 465.

[14] Zaccari, supra note 4, at 139.

[15] Scheuerman, supra note 11, at 460.

[16] Id.

[17] Tex. Const. art. V, § 2 (Texas Supreme Court); Tex. Const. art. V, § 4 (Presiding Judges of the Court of Criminal Appeals are elected by qualified voters); Tex. Const. art. V, § 6; Tex. Const. art. V, § 7 (Texas District Judges).

[18] Supra Note 8.

[19] Scheuerman, supra note 11, at 461; see also Teresa Nesbitt Cosby, Picking the Supremes: The Impact of Money, Politics, and Influence in Judicial Elections, 4 FAULKNER L. REV. 73, 79 (2012);Zaccari, supra note 4, at 142.

[20] Zaccari, supra note 4 at 142.

[21] Scheuerman, supra note 11, at 461; Cosby supra note 19, at 79; Zaccari, supra note 4, 142.

[22] Supra Note 8.

[23] Maura Anne Schoshinski, Towards an Independent, Fair, and Competent Judiciary: An Argument for Improving Judicial Elections, 7 Geo. J. Legal Ethics 839, 847 (1994).

[24] Id. at 847.

[25] Schoshinski Supra note 23, at 848.

[26]Zaccari, supra note 4, 141-142; Cosby supra note 19, at 82.

[27] Cosby supra note 19, at 83.

[28] Id. at 83.

[29] John Domino, Texas Supreme Court Justice Bob Gammage: A Jurisprudence of Rights and Liberties 163 (2019).

[30] Michael D. Gilbert, Judicial Independence and Social Welfare, 112 MICH. L. REV. 575, 577-578 (2014); Kenneth S. Klein, Weighing Democracy and Judicial Legitimacy in Judicial Selection, 23 TEX. REV. L. & POL. 269, 288 (2018); see also James J. Sample, Charles Hall & Linda Casey, The New Politics of Judicial Elections, 94 JUDICATURE 50, 51 (2010) (between 2000 and 2009, special interest groups spent tens of millions on independent TV ads. In addition, during the 1999-2000 election cycle for judicial elections, $45.9 million was raised by state supreme court candidates, which was a 62% increase from the previous cycle).

[31] Charles Gardner Geyh, Publicly Financed Judicial Elections: An Overview, 34 LOY. L. REV. 1467, 1468-69 (2001).

[32] Id. at 1468.

[33] Id. at 1469-70

[34] Id.at 1469.

[35] Id.

[36] Id. at 1469-70

[37] Id.

[38] Id.

[39] Anthony Champagne, The Selection and Retention of Judges in Texas, 40 SW L.J. 53, 84 (1987)

[40] Gary L. McDowell, Price and Prejudice: Ethics and Due Process in Texas, 4 BENCHMARK 17, 32 (1988); Geyh supra note 31, at 1471.

[41] Court History: John L. Hill, Tex. Cts. https://www.txcourts.gov/supreme/about-the-court/court-history/justices-since-1945/chief-justices/john-l-hill/ (last visited Feb. 14, 2025).

[42] Id.

[43] Gary L. McDowell, Price and Prejudice: Ethics and Due Process in Texas, 4 BENCHMARK 17, 26 (1988)

[44] See id.

[45] Id. at 28

[46] Geyh supra note 31, 1469.

[47] Id.

[48] Deborah Goldberg, Public Funding of Judicial Elections: The Role of Judges and the Rules of Campaign Finance, 64 OHIO ST. L.J. 95, 96-97 (2003).

[49] See Damon M. Cann, Justice for Sale? Campaign Contributions and Judicial Decision Making, 7 St. Pol. & Pol’y Q. 281,  286-289 (2021).

[50] Schoshinski supra note 23, at 841.

[51] Id. at 850-51; Gary L. McDowell, Price and Prejudice: Ethics and Due Process in Texas, 4 Benchmark 17, 26 (1988).

[52] McDowell supra note 51, at 17.

[53] Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 800 (Tex. App. 1987).

[54] McDowell supra note 51, at 27.

[55] Id.

[56] Id.

[57] Pennzoil, 729 S.W.2d at 800; McDowell supra note 51, at 27.

[58] McDowell supra note 51, at 17

[59] Schoshinski supra note 23, at 842; Scheuerman, supra note 11 at 479.

[60] McDowell supra note 51, at 17; Pennzoil, 729 S.W.2d at 842-43.

[61] Schoshinski supra note 23, at 842.

[62] Geyh supra note 31, 1470-71.

[63] Keith supra note 1; Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022).

[64] Id.

[65] Id.

[66] Schoshinski supra note 23, at 858.

[67] Klein supra note 30, at 276-77 297-98.