The Ideological Consequences of Selection
Fitzpatrick, Brian T.
One topic that has gone largely unexplored in the long debate over how best to select judges is whether there are any ideological consequences to employing one selection method versus another. The goal of this study is to assess whether certain methods of selection have resulted in judiciaries that skew to the left or right compared with the public at large in those states. In particular, I examine the ideological preferences of state appellate judges in all 50 states over a 20-year period (1990-2010) as measured by their relative affiliation with the Republican or Democratic Party through campaign contributions, voter registration, and primary voting. I compare those preferences to the electorate’s history of voting for Republican and Democratic candidates in those states. My findings are these: 1) the ideological skew was smaller in states that use appointment or partisan elections than in states that use so-called “merit” commissions or nonpartisan elections; 2) to the extent there was ideological skew in a state, it was almost always to the left; 3) the magnitude of skew in commission states appeared to vary in binary rather than continuous fashion based on the amount of control the legal profession had over the commissions; 4) skew was not reduced in commission states where the commissions served at the pleasure of the governor rather than by law; 5) judges who were selected by the commission and appointment methods were less likely to give campaign contributions than judges selected by either partisan or nonpartisan elections.