It’s not unusual to have such power grabs proposed as new legislatures are seated after elections. But this year, there are bills that go much further than usual to undermine or politicize the courts. These attacks on state courts follow threats against federal judges who have stood in the way of the current presidential administration.
In February, a lawmaker in Missouri introduced a bill explicitly designed to oust a judge whose rulings he didn’t like. Chad Perkins, the House speaker pro tem, recently told a reporter that he withdrew his bill to eliminate the judgeship because the court has so many cases that it’s not feasible. He reiterated that he was “not happy” with the judge’s rulings but acknowledged that it’s “a matter for the voters … to take care of.”
An alarming power grab in Utah would have given legislators the power to evaluate judges who are up for re-election, with the lawmakers’ evaluation appearing on the actual ballot beside the judge’s name. This approach would give legislators unprecedented power over individual judges — disregarding the court’s role as a coequal branch responsible for deciding when the government violates the law. Another proposal would’ve required Utah’s judges to get a supermajority of votes to keep their seats.
Republican lawmakers in Utah claimed their two failed proposals — legislative power to “evaluate” judges and a supermajority requirement to keep their seats — were “procedural updates, not an attack on the judiciary.” But the chief justice and other judges disagreed, taking the rare step of speaking out against pending legislation. Justice Paige Petersen said, “It’s obviously retribution.”
The Utah Legislature did manage to pass a bill that gives the governor the power to choose the state’s chief justice and requires Senate confirmation, rather than having the justices themselves choose. Petersen said the bill was “clearly part of a suite of bills that are trying to take aim at judicial independence … and put it under legislative control.”
Another proposal would have expanded the state’s high court, which has ruled against the Legislature on some high-profile issues, including gerrymandering and abortion. And some Utah Republicans proposed a 28-day limit on filing lawsuits that challenge new laws as unconstitutional.
Making It Harder to Overturn
Republicans in other states also want to radically change the process for challenging their laws. Bills targeting judicial review have been introduced in Kentucky, Tennessee and West Virginia.
In Montana, a proposed bill would require lawsuits against state laws to be heard where the sponsors of the bills live. And a bill to end judicial review altogether cleared a committee in the Montana House a few weeks ago. The legislation refers to the idea that courts can strike down laws as “a myth,” and it says that “no single branch has exclusive power to bind its decisions on another branch of government.”
Lee Deming, the bill’s sponsor, said the legislation is not a response to any particular ruling. But in the past six months, Montana courts have blocked laws for violating the rights of transgender children and pregnant individuals to access health care. The Montana Supreme Court in December struck down provisions of a state environmental law for violating children’s “fundamental constitutional right to a clean and healthful environment.”
Montana legislators are also considering many other so-called judicial reform bills this year. One of them would establish a committee, chosen by lawmakers and the governor, to evaluate judges based on their fidelity to the separation of powers and legislative intent. Other bills would allow more political activity by judges.
More Partisanship in the Courts
Republicans in Montana and other states also want judges to be elected in partisan elections. Partisanship in judicial elections is very unpopular with voters, though party labels do increase turnout. In 2016, North Carolina became the first state in nearly a century to adopt partisan judicial races; Republicans have won the vast majority of statewide judicial elections since then. Ohio ran its first partisan judicial races last year, and Republicans expanded their conservative, pro-corporate majority on the state Supreme Court.
Montana Gov. Greg Gianforte endorsed a constitutional amendment to require party labels for judges, a measure that passed the Montana Senate. Gianforte said that moving to partisan elections “empowers Montana voters to know a judicial candidate's political party.” Some Republicans voted against the legislation. A similar measure died in the state House, but the Senate amendment is still viable.
In West Virginia, where the Legislature made judicial elections nonpartisan 10 years ago, Republicans now want to go back to partisan elections. State Sen. Eric Tarr said, “When I go to vote, I want to know if I’m voting for a Republican or a Democrat. I don’t care if they’re mayor, judge, senator or whatever. There are ideological differences.” Justice Charles Trump, who formerly served in the Senate, said in 2015, “I contend that whether a person is a Republican or Democrat, or a Whig or a Libertarian, or whatever, tells us really nothing about whether that person possesses the qualities and characteristics that we seek and desire in those who hold judicial office.”
Changing Selection Methods
Some GOP lawmakers in Kansas want to inject more politics into the state’s courts by electing judges. Kansas chooses judges using a merit selection system, in which a nominating commission evaluates and recommends potential candidates based on their qualifications. Governors choose a name from the commission’s list, and voters can then decide whether to keep the judges on the bench in retention elections. Electing judges would subject them to the same expensive elections and political pressure as other politicians.
Republicans argue the appointment systems have led to liberal courts. Anti-abortion groups have lashed out at courts in Kansas for recognizing a right to reproductive freedom in the state constitution. Senate President Ty Masterson argued that the state’s current merit selection is political. “It’s just behind the curtain,” he said. The nominating commission evaluates potential appointees and interviews them in public.
Democrats opposed the change. “The voice of the people is simply just going to be drowned out by dark money and special interest money flooding these elections,” argued state Sen. Ethan Corson.
Republican lawmakers in both Kansas and Arizona recently proposed constitutional amendments to end the state’s merit selection systems and elect judges. A committee in the Oklahoma Senate passed a similar measure, though it would have simply eliminated the nominating commission. The governor would continue to appoint judges, without the commission assessing the qualifications, and the Senate would still have to confirm them.
Last fall, Kansas Attorney General Kris Kobach was blatant that his motivation for supporting such a change is to get the courts to rule how he wants: “Our current state Supreme Court is selected in a manner that makes it one of the most progressive supreme courts in the United States.” Though Kobach is suggesting the court is out of step with Kansas voters, those same voters overwhelmingly rejected an amendment in 2022 that would have eliminated the right to abortion under the state constitution.
In North Carolina, Democrats have introduced legislation to take party labels back out of judicial elections. The bill is named for Rep. Joe John, a former judge who passed away recently. When lawmakers were debating the issue a decade ago, John warned that partisan judicial elections “threaten to blur the line between the sacred independence of the judicial branch and the raw red meat of hostile partisan elections.”
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
