Ideological Competition over State Supreme Court Selection Methods.

The U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization increased the importance of state taw, and thus state supreme courts, with respect to abortion. This empowering of state supreme courts with respect to abortion is widely credited with helping progressives in 2023 win a Wisconsin Supreme Court election and prevent senate confirmation of a nominee for New York's highest court--both developments suggesting heightened public interest in state supreme court ideology. What determines a state supreme court's ideology? As lawyers in the contemporary United States tend to be relatively progressive, and judges are nearly always lawyers, previous scholarship unsurprisingly finds that judges tend to be more progressive than their states' voters. However, previous scholarship also finds that the size of this "leftward skew in the judiciary" varies according to the method by which judges are selected. Leftward judicial skew tends to be larger in Missouri Plan states - states that empower the bar to pick some members of the judicial nominating commission - than in states in which judges are selected by elected officials or partisan elections. These findings support the straightforward hypothesis that a judicial selection process empowering a relatively progressive group (the bar) tends toward more progressive judges, white judicial selection by the voters, or by the voters'elected representatives, tends toward judges more ideologically compatible with those voters. Relatively conservative when the Missouri Plan was enacted in 1940, lawyers in the U.S. became more progressive in the 1960s and 1970s. Following this, conservative business groups switched from advocating the bar-empowering Missouri Pian to advocating, and spending heavily to win, judicial elections. Perhaps as a result, no state has adopted a version of the Missouri Plan for its highest court since the 1980s. And at a broad level, competition over methods of supreme court selection seems to have reached a standoff, with only one state in this century amending its constitution to change its supreme court selection method from one of the three broad methods--elections, appointments by elected officials, Missouri Plan--to another of them. However, this Article shows, ideological competition over methods of supreme court selection continues in several states that ostensibly provide supreme court elections but in practice nearly always appoint their justices, in these states, a justice's midterm departure from the court creates an interim vacancy to be filled by appointment, rather than election, so the timing of a justice's departure is a choice of the successor's method of selection. In several ostensibly elective states, nearly all justices depart midterm, so their successors are routinely appointed rather than elected. For example, although the constitutions of Oregon, Minnesota, and Georgia provide for supreme court elections, all seven members of the Oregon Supreme Court initially joined the court by interim appointment, as did all seven members of the Minnesota Supreme Court, and all but one of the nine members of the Georgia Supreme Court. Not only are justices in these ostensibly elective states nearly always appointed, but these appointments tend to lead to secure long-term positions, as no incumbent justice from among these three states has lost reelection since 1970. While the displacement of elections by interim appointments is not necessarily ideological, this Article's exploration of the political context for this displacement in Oregon, Minnesota, and Georgia shows the role of ideological competition over "selection method by incumbent's departure timing" in each of these states. [ABSTRACT FROM AUTHOR]