Partisan judicial elections

Bluegrass Politics reported on July 13th:

A federal appeals court on Tuesday cleared the way for Kentucky judicial candidates to raise money and run with political party affiliations, but ordered a lower court to consider whether the candidates can offer specific positions on issues. Judge Jeffrey Sutton of the Cincinnati-based U.S. 6th Circuit Court of Appeals said banning campaign fundraising and party affiliations violated the First Amendment’s guarantee of free speech. “Elections are elections, and the same First Amendment applies to all of them,” Sutton wrote for the three-judge panel.(http://bluegrasspolitics.bloginky.com/2010/07/13/court-strikes-ban-on-judicial-party-affiliations-in-ky/)

There are good arguments for non-partisan judicial elections. With no party affiliation, the election should theoretically focus on the characteristics of the candidates and judicial philosophy rather than how they would rule on particular issues.

In a 2001 article in the American Political Science Review, Professor Melinda Hall addresses these questions by examining state supreme court elections in 38 states that popularly elect their justices. She finds that partisan influences often manage to creep their way into supposedly “non-partisan” judicial elections:

“Nonpartisan judicial elections fail to insulate incumbents from partisan politics or other contextual forces. Both state-level partisan competition and election-specific partisan competition have dramatic effects on the vote received by incumbents. In fact, the simple act of having a partisan challenger reduces the vote share of incumbents by about 22%, even though partisan labels do not appear on the ballot. Clearly, partisan considerations have not been eliminated from these races.”

Given that there is little empirical evidence to support the arguments in favor of non-partisan judicial elections, perhaps the arguments in favor of partisan elections are worth a second look.

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