Why are States So Important? Focus on: Judicial Appointments

Photo by Bonnie Kittle for Unsplash

Before you crumple into despair at the fate of the Supreme Court, remember this: while the administration and its Congressional toadies are busy trying to pack SCOTUS with unsavory men (where are those “binders of women” when we need them?), it’s the many judges at the state level who are trying the cases and issuing the rulings that affect all of us day-to-day.

According to the Judicial Learning Center, about 90 percent of all cases heard in the US court system happen at the state level. These include most criminal cases, state tax violations, and most cases related to real estate, contract disputes, family law, divorce, custody, probate, traffic, and juveniles. If you’re in trouble, chances are it’s a state court that’s going to determine your fate.

True, the Supreme Court rules on the constitutional biggies. Right to counsel, protected speech, Roe v. Wade, limited (ahem) presidential immunity, same-sex marriage, desegregation (preceded by a few horrific decisions along the way): SCOTUS has profoundly changed the country, which is why the current national situation is so nerve-wracking.

But States Have Supreme Courts, Too
… and, thanks to our nation’s foresighted founders, there’s very little the federal government can do to interfere with them – because it’s state, not federal, supreme courts that wield ultimate power to interpret state constitutional law.

And states have the power to grant or expand on rights not specifically enumerated in the federal Constitution. Per the NY Court of Appeals, “The governing principle is that our [state] Constitution cannot afford less protection to our citizens than the Federal Constitution does, but it can give more.” New Jersey law affords its citizens greater freedom from mandated drug testing than does federal law, for example; Ohio’s standards for government seizure by eminent domain are stricter than those of the federal government.

State constitutions cannot, of course, enshrine laws more restrictive than the principles set out in our Constitution; if a state flouts federal law, federal courts can deem the state’s behavior illegal. But barring that situation, the federal Supreme Court has no right to interpret a state’s constitution.

This federalist balance of power means states have leeway in making their own laws, and may act more nimbly and progressively than the federal government itself. Witness Massachusetts, which became, in 2003, the first state in the country to legalize gay marriage (thank you, state Chief Justice Margaret H. Marshall!). It took the federal Supreme Court 12 years to follow suit.

State courts don’t make the laws, of course – our legislators do. But we elect these legislators. If we elect progressive legislators, our judges will interpret progressive laws; elect troglodytes, and our judges will be compelled to interpret regressive and harmful legislation (until, one hopes, a case goes to a higher court and the law is finally declared unconstitutional).

How Are Judges Appointed?
Per Ballotpedia, judicial selection processes vary widely from state to state, but can be broadly divided into five categories:

* Partisan elections: judges are elected by the people and identified by party on the ballot;

* Nonpartisan elections: judges are elected by the people but are not identified by party on the ballot;

* Legislative elections: judges are selected by the state legislature (largely discontinued practice);

* Gubernatorial appointment: judges are appointed by the governor, in some cases with legislative approval;

* Assisted appointment, aka “merit selection” or the “Missouri Plan”: a nominating commission comprising lawyers & non-lawyers chosen by the state bar and/or executive branch submits judicial candidates’ names to the governor, who appoints a judge from the list. After serving one term, the judge must be re-confirmed by the people in a yes-or-no “retention election.”

Vote, Vote, Vote!
In Massachusetts, judges for all our state courts (Supreme Judicial, Appeals, Superior, District, Probate, and Juvenile) are nominated and appointed by the governor. Reminder: We elect the governor. The governor’s nominees must be approved by the governor’s council, or “executive council,” eight individuals elected from their representative districts every two years. Reminder: We elect these advisors.

Rhode Island, by contrast, employs merit selection for its Supreme, Superior, Family, District, Traffic, and Workers’ Compensation Courts. A nominating commission submits judicial candidates’ names to the governor – reminder: we elect the governor – and the governor’s appointee must be approved by both the state House and Senate (Supreme Court nominee) or by the state Senate alone (all other judicial nominees). Reminder: We elect our House and Senate representatives.

See where this is going? Straight to the ballot box! And remember, your vote may well resonate beyond your own state, because states are copycats. Legislators look to other states’ laws as test cases; courts look to other states’ courts for precedent. Want to reclaim the country? Just state laws and fair state judges are a good place to start.

– Juliet Eastland