NRO's “Fact-Checking” On State Courts Could Really Use A Fact-Checker

In a post on National Review Online's Bench Memos blog, Carrie Severino critiques two recent studies by the Center for American Progress (CAP) on the increasing power of conservative and big business interests over the processes by which state court judges are selected and hold office. But her “fact-checking” effort misleads on important points.

Severino makes two significant arguments against the studies, which have been discussed by a New York Times editorial and a post on the New Yorker website by Jeffrey Toobin. She states that both CAP studies, "The Conservative Takeover of State Judiciaries" and "Big Business Taking over State Supreme Courts," greatly exaggerate the number of states in which judges are elected. And she claims that the “Conservative Takeover” study states that conservatives in numerous states have sought to give their governor the power to replace judges “at will.” In each case, her argument depends on a strained and deceptive reading of the points being addressed.

Severino's claim that the studies exaggerate the number of states that “elect” their high court judges hinges on excluding the common practice of retention elections, in which judges who have reached the bench by appointment or other means periodically come before the voters in referenda on whether they should be retained in office. The studies include both states that employ retention elections and those that initially select judges through elections in their count, while Severino only counts the significantly lower number of states that use elections for initial selection. Indeed, she cites as evidence for her claim an American Judicature Society factsheet on “initial selection.”

Apart from the obvious point that an election is an election, it is not reasonable to argue that retention elections are not a means of “electing” judges. Just as much as initial selection elections fill vacancies on a court, retention elections shape state courts. In recent years retention elections in states including Iowa and Florida have become high-profile, high-dollar contests over who will serve on the state's highest court. For example, The Palm Beach Post reported:

An organization with tea party flavoring is targeting [Florida Supreme Court] Justices Fred Lewis, Barbara Pariente and Peggy Quince, the high court's last appointees of late Democratic Gov. Lawton Chiles, although Quince was named jointly with former Gov. Jeb Bush.

Opponents say the justices represent a left-leaning bloc that has turned Florida's court into one of the nation's most activist judiciaries. But the justices are defending themselves, raising an unprecedented level of campaign cash for what could prove to be Florida's first hard-hitting Supreme Court campaign.

It's part of a rising trend nationally that two years ago was marked by three Iowa justices being thrown off the bench by voters following a ruling that allowed same-sex marriage in the state.

If she wants to argue that states that hold retention elections do not “elect” their judges, Severino should do so overtly, although that would likely seem puzzling to voters in those 16 states, who regularly encounter judicial elections on their ballots, and, increasingly, anti-retention attack ads on their televisions.

She also takes issue with the statement in “The Conservative Takeover of State Judiciaries” that "[l]egislators in 24 states proposed legislation during the past legislative session (2011-2012) that would enable governors to replace competent state judges, a power that would, in practice, result in more conservative replacements in states across the country." Severino states that “it is blatantly erroneous to assert that twenty-four states considered proposals that would have allowed governors to simply replace judges at will.”

Having read “retention elections” out of the word “elections,” Severino here reads “at will” into the word “replace.” The study says nothing about “governors ... simply replac[ing] judges at will.” Each state has procedures establishing how people become -- and cease to be - judges. In any discussion of state judicial selection, the processes by which some judges “replace” others, takes place against that backdrop. A state may change its process to give its governor more or less power, but no state permits judges on its highest court to be replaced by the governor “at will.” Such a system of gubernatorial despotism over the judiciary would be absurd, and to argue, as Severino does, that the study asserts that 24 states have proposed such a system, is equally absurd.