Documenting conservative shifts on state high courts, SC considers changing how it chooses judges
([link removed])
New Analysis Details Conservative Shift on State Supreme Courts
According to a new analysis
([link removed])
by the Center for Public Integrity, several state supreme courts have become increasingly conservative over the last 30 years, a result of concerted efforts by state Republican leaders to help their allies reach the bench. While just 30 percent of state supreme court justices were Republicans in 1985, according to data
([link removed])
provided by CPI, almost 60 percent are Republicans today.
The report
([link removed])
details successful efforts by legislators in eight states to change laws related to their state supreme courts to give their party an upper hand. As the report explains, “North Carolina and Ohio made their judicial elections partisan contests. Arizona and Georgia expanded the number of justices. And Iowa, Idaho, Montana and Utah granted Republican governors greater control over the process of picking justices.”
These shifts are already having an impact, according to a companion piece
([link removed])
about how the shift has played out in North Carolina. Since the North Carolina legislature brought back partisan judicial elections in 2018, Republican candidates have reclaimed
([link removed])
a majority on the state supreme court and quickly reversed decisions their Democratic colleagues had issued just last year in cases related to partisan gerrymandering, disenfranchisement of people with felony convictions, and a new voter ID law.
Alabama Legislature’s Defiance of the U.S. Supreme Court
In June, the U.S. Supreme Court mandated
([link removed])
that the state of Alabama draw new voting district lines to comply with the Voting Rights Act. By a 5–4 vote, the Court upheld a lower court decision requiring that the state’s new map include a second majority-Black district or “something quite close to it.” However, after Alabama’s state legislature approved a new map in late July, critics said
([link removed])
it appeared to outwardly defy the Supreme Court’s mandate, yielding a Black voting age population of less than 40 percent even in the district where that population was increased. According to a Brennan Center analysis, the new map would have yielded a Black candidate of choice in only 1 of 15 statewide elections between 2016 and 2020. The plan will be heading back to court
([link removed])
to face legal challenges.
Alabama Gov. Kay Ivey (R) defended
([link removed])
the new map, saying, “The Legislature knows our state, our people and our districts better than the federal courts or activist groups.” Because the state had ongoing litigation at the Supreme Court, Alabama voters were forced to vote using what the Court ultimately concluded were likely unlawful maps in the 2022 election. It appears that federal courts will play a major role in the fate of the map for Alabama’s 2024 election as well.
Loosening the South Carolina Legislature’s Control Over Judicial Selection
South Carolina’s judicial selection process is unusual; it’s one of only two
([link removed])
states where the state’s general assembly has the final say in filling most judgeships. The state’s attorney general, Alan Wilson, has launched an advocacy effort
([link removed])
to persuade the legislature to change the way it exercises this power — largely by changing the commission
([link removed])
that provides the slates of candidates from which the legislature chooses judges.
The Judicial Merit Selection Commission
([link removed])
, which screens candidates and provides slates to the general assembly, has 10 members. All 10 are appointed by legislative leaders, and 6 of the 10 seats are designated for legislators specifically, while 4 are members of the public. The legislators who serve on the panel are generally also practicing attorneys, which is one source of criticism
([link removed])
of the current system from prosecutors, who say they fear favoritism. Prosecutor Scarlett Wilson, who joined Attorney General Wilson in advocating for change, said, “No offense to the lawyer-legislators, but when I go into court [and they are representing the other party], I am against someone who can hire, fire, and retain [judges], and I don’t have that.”
In the meeting convened by Attorney General Wilson, a group of legislators discussed a variety of proposals. Wilson’s proposal
([link removed])
would give the state’s governor the power to appoint members to the commission while leaving the ultimate selection of judges with the general assembly. Other proposals include simply prohibiting legislators who are attorneys from serving on the panel. While criticism of the current system appears to be somewhat widespread, it remains to be seen whether legislators can unite around a particular solution — and whether that solution will result in their ceding any of the control they currently have.
([link removed])
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750 New York, NY 10271
646-292-8310
tel:646-292-8310
[email protected]
Support Brennan Center
[link removed]
Want to change how you receive these emails or unsubscribe? Click here
[link removed]
to update your preferences.
([link removed])
([link removed])
([link removed])
([link removed])
([link removed])
([link removed])
