Choose Your Judges

Retention Elections-Recalls or Referendums?

February 20th, 2013

Seventeen states use “retention elections” for their Supreme Court Justices—that is, the Justice is appointed (usually by the governor), and perhaps confirmed (usually by the legislature),

Retention Elections—Recalls or Referendums?.You could look at retention elections in one of two ways. The most common way of viewing retention elections is like a built-in recall election—that is, if a judge commits some dramatic indiscretion or begins ignoring the law altogether, voters have the power to remove the maverick judge from the bench. This is what we might call a “passive” theory of retention elections, since the voters do nothing unless roused to action by a particularly corrupt or incompetent judge.

The second way to look at a retention election is like a referendum—a chance for the voters to review how the judge has been performing over the past term and then decide whether the performance warrants a second term. If the voters mostly agree with how the judge has been performing, they will award the judge a second term. If the voters do not agree with the judge’s performance, they will vote him or her off the bench. We can call this the “active” theory of retention elections, since it relies on voters actively monitoring a judge’s performance and then passing judgment on it.

The passive retention theory—retention-as-recall—seems like a very inefficient method of monitoring a judge’s behavior. If a judge misbehaves in some dramatic way, the state could set up other, cheaper ways to remove him or her from office—either impeachment by the legislature or removal by the state bar. Both of these bodies would be better qualified to decide whether the judge’s actions warranted the dramatic step of removal from the bench, and both would be less likely to abuse the process.

On the other hand, the active retention theory runs the risk of politicizing the judiciary—voters will review the judge’s performance not on whether or not the judge is competent or applies the law correctly, but rather based on whether they agree politically with the judge’s rulings. A judge who wants to keep his or her job will have to consider the political ramifications of each decision, knowing that the voters are looking over his or her shoulder.

In reality, retention elections fall into the “recall” category, if only because most voters know nothing about the judges running for retention and so either automatically vote to confirm or ignore that portion of the ballot altogether. And, because most judges are not corrupt or incompetent, there is generally no reason to “recall” them from the bench. Retention rates for judges routinely run at around 99%, and a majority of states have never had a Supreme Court Justice lose a retention election.

But there are exceptions: when a special interest group rises up to challenge a judge for a specific decision or pattern of decisions, a retention election can turn into a referendum on the judge’s decisions. The most famous example of this occurred in 1986, when California voters voted not to retain three members of their Supreme Court (Rose Bird, Cruz Reynoso, and Joseph Grodin) because of their consistent rulings overturning death penalties that had been imposed by juries (Justice Bird, for example, voted to overturn the jury-imposed death penalties in all 64 cases that came up for review during her time on the Court). Social conservatives led an anti-retention campaign and were joined by some pro-business groups, who disliked the Justices’ rulings on contract and business law. In the end, Justice Bird lost her bid for retention by a wide margin: 67% to 33%.

The recall/referendum distinction ultimately comes down to the standard voters when voting in a retention election: does being appointed by the governor mean you keep your job unless you are clearly unfit for the bench, or does it merely mean you get to be a judge for one term in order to build up a record that voters can use to determine whether they agree with your decisions? Voters in retention states need to decide for themselves how they want to treat these elections.

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