The conservative movement has finally created a structural vetting process to ensure that every judicial vacancy under a Republican president is filled with at least a moderately conservative judge. However, despite this progress, many left-leaning judges remain in the federal judiciary due to the presidency switching between parties. But what about states where Republicans consistently control the government? Shouldn’t those states be filled with conservative judges like in Florida? Unfortunately, no.
Unless several red states make changes, an oligarchy of liberal judges could undermine all efforts to expand freedom caucus majorities.
Red states need partisan elections to address incumbent judges running for re-election.
At the federal level, all three layers of the judiciary are appointed through presidential nomination, without restrictions on the pool of nominees, and confirmed by the Senate. New Hampshire is the only red state with a similar process for appointing supreme court justices, where the governor can nominate anyone of his choosing, subject to confirmation by the Executive Council, a unique quasi-legislative body.
In five other “red-ish” states — Alabama, Louisiana, North Carolina, Ohio, and Texas — state supreme court judges are selected through direct partisan elections. While this gives Republicans a partisan edge, it doesn’t necessarily guarantee the election of strong conservatives.
For states in these first two categories, conservatives need to build a network of solid, conservative-only candidates for both gubernatorial appointments and for support in elections.
The more problematic states, however, are those that select judges through nonpartisan elections. These elections allow undercover Democrats to enter office stealthily. Even worse are the states that use “assisted appointments,” where a commission, often controlled by left-leaning bar associations, limits the governor’s choices by presenting a small list of candidates.
In several red states, unelected commissions in which the majority of members aren’t selected by the Republican governor dominate the judicial selection process. These include Alaska, Indiana, Kansas, Missouri, Nebraska, Oklahoma, South Dakota, and Wyoming.
It should come as no surprise that we have a major problem with liberal judges in those states.
Only four current red states using commissions allow the governor either to ignore the recommendations or to appoint the majority of the commission members: Florida, Tennessee, Iowa, and Utah. Unfortunately, because of liberal Republican governors over the years in states like Tennessee and Utah, these states are dominated by liberal judges just as bad as any in states controlled by Democrats.
Tennessee and Utah have recently introduced legislative confirmation for judges, and a new conservative Utah governor could theoretically ignore the commission’s recommendations, unlike in other states. In Iowa, however, a strong majority of the commission (eight of the 17 commissioners) are elected by unelected lawyers. Only in Florida does the governor select all the commissioners.
Then, of course, there are the solid red states that hold nonpartisan elections. Those include Arkansas, Georgia, Idaho, Kentucky, Mississippi, Montana, North Dakota, and West Virginia.
For trial courts, even more red states — including Oklahoma, Ohio, South Dakota, and Florida — choose judges through nonpartisan contests.
South Carolina is an unusual state where the legislature has sole authority over judicial selection.
In short, aside from the issue of liberal governors or legislatures, most red states still choose judges either through nonpartisan elections or by placing governors on a short leash, controlled by commissions dominated by bar associations, unaccountable bureaucrats, technocrats, or lawyers.
Montana is one state where the influence of nonpartisan elections has been evident. Nearly every good policy passed by the legislature has been struck down by the courts. This includes rulings against an abortion parental consent law, a provision defining sex as male and female, and various election integrity measures. Two liberal supreme court justices, Chief Justice Mike McGrath and Justice Dirk Sandefur, who voted against parental consent, are retiring. Cory Swanson and Dan Wilson are better candidates to replace them. Due to the nonpartisan labeling of candidates, however, voters are often confused about which candidate is the Republican. As a result, they are frequently swayed by slick ads from well-funded liberals who do not run openly as Democrats.
A partisan election would ensure that a Democrat could not win and would also make primaries partisan in a way that could net more conservative Republicans.
North Carolina recently switched to partisan elections, and, not surprisingly, Republicans now have a 6-1 edge on the state’s highest court. You can imagine the results in 20 or so states where Democrats are much less viable statewide than they are in the Tarheel State.
Red states need partisan elections to address incumbent judges running for re-election. Most states currently use retention ballots or nonpartisan elections. Only Texas, Louisiana, Alabama, Ohio, and North Carolina hold regular partisan elections for supreme or appellate court judges. Indiana holds partisan elections for additional terms of trial judges.
Every other state uses retention ballots, nonpartisan elections, or a selection process for renomination. Red states should require liberal judges to stand for re-election under partisan labels so that voters know who they are voting for.
It’s clear that voters in red states will avoid candidates labeled as Democrats. This is why the left cannot push its agenda through representative democracy in these states. Instead, they rely on nonpartisan selection commissions, nonpartisan labels, or confusing ballot initiatives.
In fact, the left is pushing ballot initiatives to circumvent legislatures and implement its agenda. And when those initiatives are challenged in court, red state liberal judges side with the left every single time.
State judges in Missouri and Nebraska recently allowed vague abortion amendments to remain on the ballot. In North Dakota, a state court overruled the legislature, nullifying the state’s pro-life law. Meanwhile, in Utah, where conservatives sought to pass a ballot initiative empowering the legislature to regulate the effects of ballot initiatives, the judiciary took a different approach. Utah’s 3rd District Court Judge Dianna Gibson blocked Amendment D, calling it “false and misleading.”
This judicial action contrasts with decisions in other states where vague ballot initiatives have been allowed on the November ballot. Here, the judiciary’s role has been to empower direct democracy as a way to bypass representative democracy, the governance model our founders designed.
Several decades ago, George Soros recognized the power of targeting local judges, prosecutors, city councils, and ballot initiatives. By focusing on these areas, he gained significant influence across all 50 states. This strategy has proven largely successful.
If conservatives don’t address the problem of the red-state judiciary, electing the best state legislators in primaries will be an exercise in futility.
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