Ballotpedia Courts: State Partisanship/Judicial Selection Methods and Partisanship

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State Partisanship

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Overview

Methodology and defintions • Overview of Confidence Scoring Results • State Supreme Court Control Compared to State Government Trifectas • Breakdown of Justices by Confidence Categories

The Most and Least Divided State Supreme Courts

The Least Homogeneous State Supreme Courts • The Most Homogeneous State Supreme Courts • The Percentage of the Population that Lives in States with Democratic- or Republican-Controlled Courts

Judicial Selection Methods and Partisanship

Partisanship of Justices Across Judicial Selection Methods • Comparison of Appointment Methods by Court Balance Score and Median Court Score • Difficulties with Our Analysis of Pure Partisanship Scores by Selection Method

Partisan Balance Rules

Retention Elections and Vacancy Appointments

Retention Elections • Vacancy Appointments

Confidence Scores

Highest Confidence Scores • Indeterminate Justice Confidence Scores • Pure Partisan Scores

June 2020

Jump to:

• Partisanship of Justices Across Judicial Selection Methods
• Comparison of Appointment Methods by Court Balance Score and Median Court Score
• Difficulties with Our Analysis of Pure Partisanship Scores by Selection Method

Partisanship of Justices Across Judicial Selection Methods

There are three broad categories of state supreme court selection:

• Assisted Appointment
• Direct Appointment
• Election

Within these three broad categories, there are eight ways of administering selection among the states. We classify them with the following subcategories:

• Assisted Appointment
  • Assisted Appointment through Bar-Controlled Commission is the method of assisted appointment in which the state bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
    • One state, Kansas, has a bar-controlled commission.
  • Assisted Appointment through Governor-Controlled Commission is the method of assisted appointment in which the governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
    • Nine states have a governor-controlled commission: Arizona, Colorado, Connecticut, Delaware, Florida, Iowa, Maryland, Rhode Island, and Utah.
  • Assisted Appointment through Hybrid Commission is the method of assisted appointment in which the judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has clear majority control.
    • Ten states have a hybrid commission: Alaska, Hawaii, Indiana, Missouri, Nebraska, New York, Oklahoma, South Dakota, Vermont, and Wyoming.New Mexico has a hybrid-commission for vacancy appointments, but all judges must face a partisan election.

• Direct Appointment
  • Direct Gubernatorial Appointment is the method of appointment in which the governor has full power to appoint judges to the state supreme court.
    • Six states use direct gubernatorial appointment: California, Massachusetts, New Hampshire, New Jersey, Maine, and Tennessee.
  • Direct Legislative Appointment is the method of appointment in which the state legislature selects a justice to fill a seat on the state supreme court. In states using direct legislative appointment, there is a legislative committee that compiles a shortlist of justices for the entire chamber to vote upon.
    • Two states use direct legislative appointment: Virginia and South Carolina.
• Election
  • Michigan-Ohio Method is the method of selecting justices through nonpartisan elections preceded by a partisan primary or convention. In these states, penultimate selection takes place on partisan ballots, and the winners of each partisan primary compete in a nonpartisan election for ultimate selection to the court.
    • Two states hold partisan primaries before nonpartisan elections: Michigan and Ohio.
  • Partisan Election is the method of selecting state supreme court justices in which candidates appear on a ballot with an indication of their political party.
    • Seven states use this method: Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas.
  • Nonpartisan Election is the method of selecting state supreme court justices through democratic elections in which the justices do not run as registered members of a political party.
    • 13 states use this method: Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, Wisconsin, and West Virginia.

This section includes a summary of the Court Balance Scores and Pure Partisanship Scores for state supreme courts using each of the eight selection methods.

Court Balance Score attempts to show the balance among justices with Democratic, Republican, and Indeterminate Confidence Scores on a court. The Pure Partisanship Score attempts to show our total confidence in partisan affiliations on a court. Selection methods with a lower Pure Partisan Score have, on average, justices with lower Confidence Scores, without consideration of the specific party for which there is evidence of their party affiliation. Selection methods that record a lower negative Court Balance Score have Democratic Confidence Scores that outweigh the Republican Confidence Scores. Selection methods that record a higher positive Court Balance Score have Republican Confidence Scores that outweigh Democratic Confidence Scores. Selection methods that record a Confidence Score closer to zero have a more equal representation of justices with a Confidence Score for each party.

Selection Method	Number of States	Number of Justices	Court Balance Score	Pure Partisanship Score	Median Score
All Selection Methods	50	341	1.7	7	4
Assisted Appointment (Bar Controlled)	1	6	-0.5	5.5	-4
Assisted Appointment (Gov. Controlled)	10	60	0.8	6.3	2
Assisted Appointment (Hybrid)	10	67	2.7	6.3	4.5
Direct Gubernatorial Appointment	5	31	-1.2	5.8	0
Direct Legislative Appointment	2	12	3.7	5	4
Michigan-Ohio Method	2	14	5.4	11	11.5
Nonpartisan Election	13	91	1	6.4	2
Partisan Election	7	60	2.7	9.8	7

Assisted Appointment Through a Bar-Controlled Commission Produced the Lowest Average Pure Partisan Score

The method of selection yielding the lowest average Pure Partisanship Score is Legislative Selection. The average Pure Partisanship Score of justices selected by the state legislature is 5, compared to the national average of 7. Only two states use legislative selection to choose state supreme court justices: South Carolina and Virginia.

The mode of selection that accounts for the second least partisan average is Assisted Appointment through a judicial nominating commission in which the majority of the members are appointed by the state bar association. The average Pure Partisanship Score for justices chosen through a bar-controlled judicial nominating commission is 5.5. Only one state (Kansas) selects its justices using Assisted Appointment through a Bar-controlled commission.

Direct Gubernatorial Appointment results in the third-lowest average Pure Partisanship Score for justices with an average score of 5.8. Five states use Direct Gubernatorial Appointment to select state supreme court justices: California, Massachusetts, New Jersey, Maine, and Tennessee.

The Michigan-Ohio Method of Selection Produced the Highest Average Pure Partisan Score

Of all selection methods, the Michigan-Ohio method produced justices with the highest Pure Partisanship Score, on average. Whereas the average Pure Partisanship Score for justices nationally is 7, justices in Michigan and Ohio record an average Pure Partisanship Score of 11. Michigan and Ohio are the only states that use the Michigan-Ohio method, which consists of a partisan primary followed by a nonpartisan general election. Of the 14 justices in Michigan and Ohio, four justices were selected by the governor to fill vacancies on the court, all of whom are members of the Michigan Supreme Court. Not including the scores for the four justices chosen to fill vacancies, the Michigan-Ohio method records an average Pure Partisanship Score of 10.3.

The method of selection which accounts for the second-highest average Pure Partisanship Score is Partisan Election, which records a score of 9.8. Seven states use this method: Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas.

The method of selection that accounts for the third-highest average Pure Partisan Score is Nonpartisan Election, which records a score of 6.4. This method is used by 13 states: Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, Wisconsin, and West Virginia.

Comparison of Appointment Methods by Court Balance Score and Median Court Score

According to our findings, there is little correlation between the selection method and increased selection of justices from a single party. Specific selection methods do not favor a specific party. There is a greater correlation between the partisan makeup of the state and the Court Balance Score in that state.

Selection Method	Median Score	Court Balance Score	Pure Partisanship Score
Assisted Appointment (Bar)	-4	-0.5	5.5
Direct Gubernatorial Appointment	0	-1.2	5.8
Assisted Appointment (Gov. Controlled)	2	0.8	6.3
Nonpartisan Election	2	1	6.4
Direct Legislative Appointment	4	3.7	5
Assisted Appointment (Hybrid)	4.5	2.7	6.3
Partisan Election	7	2.7	9.8
Michigan-Ohio Method	11.5	5.4	11

When evaluated by the median score, the most partisan mode of appointment is the Michigan-Ohio method. The Michigan-Ohio method had a median score of 11.5. Assisted Appointment through a bar-controlled judicial nominating commission is the method with the strongest Democratic tendency, with a median score of -4. The mode of appointment which yielded the lowest median score was Direct Gubernatorial Appointment which recorded a median score of 0.

The mode of appointment with the highest Court Balance Score was the Michigan-Ohio method. The Michigan-Ohio method had an average score of 5.4, indicating an average Republican balance. Direct Gubernatorial Appointment is the method with the strongest Democratic tendency, recording a Court Balance Score of -1.2. The modes of appointment with the Court Balance Scores closest to zero were Assisted Appointment through a governor-controlled commission, recording a score of 0.9, and Assisted Appointment through a bar-controlled commission, recording a score of -0.5.

The relationship between partisanship and the appointment method is not necessarily causal. According to the data from our study, partisanship on the state supreme court is rooted in partisan control of the state government rather than the appointment method. For example, though Direct Gubernatorial Appointment seems to have a higher likelihood of selecting Democratic justices, this has little to do with the method itself and more to do with the states where the method is employed. California has had mostly Democratic governors in the last 20 years; likewise, California’s Democratic governors have appointed justices with Democratic Confidence Scores.

Two states which use the Partisan Election method of selection, Illinois and Alabama, achieve a very different partisan balance on the court, despite employing the same method of selection. Alabama records the highest average Republican Confidence Score of any state supreme court (11.9). Illinois records a Democratic Confidence Score (-4).

Difficulties with Our Analysis of Pure Partisanship Scores by Selection Method

These are the possible exceptions to our analysis of Pure Partisanship Scores by the selection method. Some methods are used by just one or two states. Unique circumstances in any one of those states are likely to affect our assessment of Confidence Scores as they relate to selection methods.

• In Michigan, a majority of the justices at the time of our study were chosen as vacancy appointments as opposed to the Michigan-Ohio Method.
• Legislative Selection is only used by two states: South Carolina and Virginia.
• Kansas is the only state which uses Assisted Appointment through a Bar-Controlled Commission.

Michigan-Ohio Method

In the Michigan-Ohio Method, voters select state supreme court justices who run in a partisan primary followed by a nonpartisan general election.

When grouped by selection method, the two states that primarily use the Michigan-Ohio Method have the highest average Pure Partisanship Score.

In Michigan, four of seven justices studied were appointed by the governor to fill a vacancy on the court. They were not selected through a partisan primary followed by a nonpartisan election. In fact, the justices with the strongest Confidence Scores were all chosen as an exception to the state’s ordinary selection method. These justices chosen as exceptions all received Strong Republican scores, while those chosen through the ordinary selection method received Mild to Strong Democratic Confidence Scores. The average Pure Partisanship Score of justices chosen to fill vacancies in Michigan is 12.8. Excluding the justices chosen as an exception to the state’s selection method, the Michigan Supreme Court’s Pure Partisan Score is 8.4.

Without considering exceptions to the Michigan-Ohio method, the Pure Partisan Score of justices chosen through the Michigan-Ohio method is 11, which still results in the highest Pure Partisan Score of all selection methods.

Legislative Selection in South Carolina and Virginia

Two states use the Direct Legislative Selection method: South Carolina and Virginia. Legislative selection resulted in an average Pure Partisanship Score of 5. The national average is 7.

South Carolina has four justices with Mild Republican affiliation and one justice with Indeterminate partisan affiliation. The Court Balance Score for South Carolina is 4.2, Mildly Republican. The pure partisanship score of South Carolina’s justices is 4.6, compared to the national average of 7.

Virginia has one justice with Strong Republican affiliation, three justices with Mild Republican affiliation, one justice with Mild Democratic affiliation, and two justices with Indeterminate partisan affiliation. The Court Balance Score for Virginia is 3.3, Mildly Republican. The pure partisan score of Virginia’s justices is 5.3, compared to the national average of 7.

Kansas and Assisted Appointment Through a Bar-Controlled Commission

Kansas is the only state in the country that appoints its state supreme court justices through a judicial nominating commission with a majority of members appointed by the State Bar Association. The Court Balance Score for Kansas is -0.5, or Indeterminate. The State has an average Pure Partisanship Score of 5.5.

About the authors

Samuel Postell is a staff writer on Ballotpedia's Marquee Team and a lecturer at the University of Dallas.

Luke Seeley is a staff writer on Ballotpedia's Marquee Team.

Heidi Jung developed the graphics.

Ballotpedia CEO Leslie Graves, Ballotpedia COO Gwen Beattie, Editor-in-Chief Geoff Pallay, and Ballotpedia Vice President of external relations Alison Prange reviewed the report and provided feedback as did editor Cory Eucalitto. Outside reviewers included Dr. G. Alan Tarr from Rutgers University, and Dr. Aman McLeod from the University of Idaho College of Law.