Bench Memos

2010 State Court Election Roundup

On Monday, I wrote that I would be tracking state supreme court elections in a number of states. I did, and the story, in short, is that this election cycle was a very, very good one for judicial conservatives. Just as in 2008, we saw a number of important successes for state judicial reform and in state supreme court elections.

In what were probably the most important contested races of the night, Justice Robert Young and Judge Mary Beth Kelly easily won their races, flipping the philosophical balance of the Michigan Supreme Court back to conservatives. In North Carolina, Alabama, and Texas, a total of seven Republican candidates won by very wide margins, and in each state the more conservative justices control the balance of the court. In a further sign of progress, the prior “acrimony” around electing judges of judicial restraint in states like Alabama and Texas has now led to a new phase where conservative principles of jurisprudence are the status quo.

In Washington the race is still too close to call, but one of the few conservatives on that court, Justice Richard Sanders, holds a narrow lead.

In Iowa, three liberal judicial activists were defeated. As I mentioned before, it is extremely rare for judges to lose retention elections. In the history of the Missouri Plan(the so-called “merit selection plan”), less than 2 percent of judges have lost these races, and a large number of those happened in Illinois, where the threshold for retention is 60 percent of the vote rather than 50 percent. (This mostly explains the easy victories of judges standing for retention in Kansas and Colorado.) Though most of the news coverage has framed this as a story about the people rebuking the court’s decision to impose gay marriage on the state, it is also extremely important to note that it is a public rebuke of the method of judicial selection (the Missouri Plan) that gave Iowa these awful justices in the first place. Newly elected governor Terry Branstad has a big opportunity here to start a long-term reform of the judicial selection process and make it more transparent and accountable to the citizens of Iowa.

The night’s disappointing loss came in Illinois, where the liberal judicial activist Justice Kilbride was retained. According to my sources in Illinois, Kilbride worked very hard to position himself as a conservative Republican in the closing days of the election, and successfully peeled off the number of conservative voters he needed to cross the 60 percent threshold for retention.

Finally, Nevada. As Ed Whelan has already noted, Nevada voters handed Justice O’Connor and her allies in the George Soros network an enormous defeat by defeating Question 1. Soros has invested more than $45 million to promote the merit deception plan across the country — sometimes with the help of Republican governor Mitch Daniels — because he knows that it is a proven method for capturing the judiciary for trial lawyers and liberal special interests. The defeat of this measure in Nevada should send a strong message to special interests in places like Missouri, Kansas, Alaska, and Tennessee who are fighting to keep the merit deception alive in those states.

All in all, it was one of the best cycles in memory for judicial conservatives. But it follows significant victories in many previous years, including 2008, when conservatives fighting legislative battles at the federal and state level, saw significant defeats. George Soros’s groups — Justice at Stake, the Brennan Center for Justice, American Judicature Society, League of Women Voters, and others — see the same trends we do, and they will stop at nothing to ensure that state judicial selection process is rigged in favor of their friends. You will be hearing plenty more on that subject from me and my colleagues at JCN in the future.

Gary Marx is executive director of the Judicial Crisis Network.


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