Bobby Miller recently argued here in favor of abolishing judicial elections, the method by which judges are selected in many states. He describes the process of seeking the endorsement of interest groups as undermining a sense of the judge’s impartiality. He also fears that elected judges may answer to their “supporters or the broader electorate rather than the law.”

I agree with Miller that judges “should aim to ‘say what the law is’ and nothing more.” I also see a problem with judicial candidates like Janet Protasiewicz, who was just elected to the Wisconsin Supreme Court in a nominally nonpartisan but politically hypercharged campaign after she intemperately trumpeted her opinion on a number of controversial issues that are likely to come before the court. But her issue-posturing on the campaign trail was an anomaly atypical of candidates running for judgeships—and indeed gave ammunition to those who would call for her recusal in such cases in the future.

In practice, however, judges who infuse their decisions with their own policy preferences have long presented a widespread problem, and the problem has been worse the more judges are insulated from both elected officials and the electorate. What has become known as the Missouri Plan, giving nominating power to unelected commissions dominated by lawyers, has actually contributed the most to a politicized judiciary with a fraught relationship with the rule of law.

I have previously explored judicial decisions that have gone off the rails in Missouri Plan states such as Kansas and Oklahoma. This should not be surprising. Empirical research shows that Democrats overwhelmingly benefit from the Missouri Plan model regardless of the party affiliation of the governor. Judges selected that way are not less political. They simply reflect the views of the selecting committee, well to the left of the state at large. Elected judges are more often cited by outside courts and ironically even more willing to vote with judges from the opposite party. Studies have shown elected judges to garner more confidence in their impartiality. Meanwhile, Missouri Plan states see less citizen engagement and turn out to be worse at curtailing corruption.

Vanderbilt Law Professor Brian Fitzpatrick has compared various methods for selecting judges among the states. By his analysis, state appellate judges selected by unelected commissions displayed the sharpest ideological skew away from the state’s population, followed by judges selected by nonpartisan elections. Both skews were noticeably to the left. By contrast, the skew from the general population that appeared in states with partisan elections—where party affiliation is on the ballot—or appointment by elected officials was considerably smaller.

Judicial elections became a widespread method of state judicial selection during the nineteenth century, corresponding to the broader tendency toward the expansion of the franchise and increased participation in elections. Suspicion of the electorate and the ceding of more and more government power to unelected bureaucrats was a trait of the Progressive Era in American government, which provided the model that dominated the twentieth century. The failure of that model makes the durability of state judicial elections that much more likely.