The conservative movement has finally established a structured review process to ensure that all judicial vacancies under a Republican president are filled with at least a moderate conservative judge. Yet despite this progress, many left-leaning judges remain on the federal bench as the presidency alternates between parties. But what about states where Republicans have consistently controlled the government? Shouldn't those states, like Florida, be filled with conservative judges? Unfortunately, they aren't.
Unless a few Republican-leaning states reform, an oligarchy of liberal judges could undermine any efforts to expand the liberal majority.
In Republican-leaning states, partisan elections are necessary to deal with sitting judges seeking reelection.
At the federal level, all three levels of the judiciary are appointed by presidential nomination, with no restrictions on candidates, and confirmed by the Senate. New Hampshire is the only Republican-leaning state with a similar Supreme Court appointment process, in which the governor may nominate a person of his or her choice, subject to confirmation by the state's own quasi-legislative body, the Executive Council.
In five other “Republican-leaning” states — Alabama, Louisiana, North Carolina, Ohio, and Texas — state supreme court justices are elected on a direct partisan basis, giving Republicans a partisan advantage but not necessarily guaranteeing the election of hardline conservatives.
In these first two categories of states, conservatives will need to build a network of staunchly conservative-only candidates, both for gubernatorial appointments and for electoral support.
But more problematic are states that select judges in nonpartisan elections, which allow Democrats to quietly slate into office, and even more problematic are states that use “auxiliary appointments,” a system in which committees, often controlled by left-leaning bar associations, limit the governor's choices by presenting a small slate of candidates.
In several Republican-leaning states, the judicial selection process is controlled by unelected commissions whose members are largely not selected by Republican governors, including Alaska, Indiana, Kansas, Missouri, Nebraska, Oklahoma, South Dakota and Wyoming.
It is not surprising that these states have major problems with liberal judges.
Currently, only four of the Republican-leaning states that have commissions allow their governors to either ignore the recommendations or appoint a majority of the commissioners: Florida, Tennessee, Iowa, and Utah. Unfortunately, states like Tennessee and Utah have had liberal Republican governors for many years, and these states are populated with liberal judges who are just as bad as the Democrat-run states.
Tennessee and Utah recently instituted legislative confirmation of judges, and unlike other states, Utah's new conservative governor could theoretically ignore the commission's recommendations. But in Iowa, the overwhelming majority of the commission (8 of the 17 members) are unelected lawyers. Only Florida has an entire commission selected by the governor.
And, of course, there are Republican-leaning states that have nonpartisan elections, including Arkansas, Georgia, Idaho, Kentucky, Mississippi, Montana, North Dakota and West Virginia.
On the courts, many more Republican-leaning states, including Oklahoma, Ohio, South Dakota and Florida, select their judges through nonpartisan contests.
South Carolina is a rare state in which the General Assembly has sole authority over the selection of judges.
So, leaving aside the issues of liberal governors and legislatures, most Republican-leaning states still select their judges either through nonpartisan elections or by putting the governor in a strict managerial position controlled by bar associations, unaccountable bureaucrats, technocrats, and lawyer-dominated committees.
Montana is one state where the impact of nonpartisan elections is clear. Nearly every good policy passed by the Legislature has been struck down by the courts. This includes parental consent laws for abortions, provisions defining gender as male and female, and rulings on various election integrity measures. Two liberal Supreme Court justices who voted against parental consent, Chief Justice Mike McGrath and Justice Dirk Sandefur, are retiring. Their replacements, Corey Swanson and Dan Wilson, are better suited to replace them. However, because the candidates are classified as independents, voters are often confused as to which candidates are Republicans. As a result, they are frequently swayed by slick advertising from well-funded liberals who are not openly running as Democrats.
A partisan election would ensure that Democrats could not win, and making the primary partisan could potentially win over more conservative Republicans.
North Carolina recently switched to partisan elections, and as expected, Republicans hold a 6-1 advantage on the state Supreme Court. It's not hard to imagine an outcome in about 20 states where Democrats have much lower statewide support than North Carolina.
Republican-leaning states need partisan elections to deal with sitting judges up for reelection. Currently, most states have retention ballots or nonpartisan elections. Only Texas, Louisiana, Alabama, Ohio, and North Carolina have regular partisan elections for Supreme Court or appeals court judges. Indiana holds partisan elections to extend judges' terms.
All other states use retention ballots, nonpartisan elections, or selection processes for re-nomination. Republican-leaning states should require liberal judges to run for re-election with partisan labels so voters know who they are voting for.
Because voters in Republican-leaning states clearly shun candidates labeled as Democrats, the left cannot advance its agenda through representative democracy in these states. Instead, they rely on bipartisan select committees, bipartisan labels, or confusing ballot initiatives.
In fact, the left pushes referendums to get around Congress and implement their policies, and when these referendums end up in court, liberal judges in Republican-leaning states side with the left every time.
State courts in Missouri and Nebraska recently allowed vague abortion amendments to remain on the ballot. In North Dakota, a state court overruled the Legislature and struck down the state's pro-life law. Meanwhile, in Utah, conservatives sought to pass a ballot measure that would give the Legislature the power to regulate the effectiveness of ballot measures, but the judiciary took a different approach. Judge Diana Gibson of the Utah 3rd District Court Blocking Amendment DHe called it “false and misleading.”
This judicial action contrasts with decisions in other states that allowed ambiguous referendums to appear on the November ballot, where the judiciary's role was to enforce direct democracy as a way to circumvent representative democracy, the model of governance designed by the Founding Fathers.
Decades ago, George Soros realized the power of targeting local judges, prosecutors, city councils, and ballot initiatives. By focusing on these areas, he gained significant influence in all 50 states. This strategy has proven to be largely successful.
If conservatives don't address the problems with the state's Republican-backed judicial system, electing the best state legislators in the primary will be a futile effort.
