'Law is the Mere Continuation of Politics by Different Means': American Judicial Selection in the Twenty-First Century

Abstract:     
This paper examines changing patterns in the politics of judicial selection in the United States. Central to the discussion is that judicial selection in the U.S. has always had a strong political element. Recent changes in the politics of judicial selection reflect a shift from the politics of patronage to the politics of policy. Part of the analysis updates research on the relationship between partisanship and voting in judicial elections. Partisanship has always been strong in states using partisan systems, and that has not changed. Some states that use nonpartisan elections have seen an increase in the partisanship of voting patterns while other states have not seen such an increase. The two states using a mixed partisan (nomination)/nonpartisan (election) system have seen an increase in partisanship, particularly in the post-1990s period. The paper concludes with a discussion of alternative selection systems but emphasizes that no system would eliminate politics, only shift the nature of the politics.

Keywords: judicial selection, judicial elections

Accepted Paper Series