The Quiet Way Democrats hope to expand their power at the state level
No longer in control of the Supreme Court and still playing catch-up against Republicans in the federal judiciary, Democrats hope to gain a political advantage in a less visible but still important playing field: the state courts.
After flipping Arizona's governor's seat from Republican to Democratic last year, Gov. Katie Hobbs appointed 15 judges to the state's superior courts. In her five years leading deep-red Kansas, Democratic Governor Laura Kelly has appointed two judges to the Court of Appeals and one to the state Supreme Court.
Governors have the power to appoint judges in almost every state. These responsibilities will be front and center in political campaigns this year, as the Democratic Governors Association begins a multimillion-dollar initiative called the Power to Appoint Fund focused on key gubernatorial races.
The fund, with a $5 million goal, will target two open 2024 battleground seats in particular: New Hampshire, where the governor has the power to appoint state court judges, and North Carolina, which chooses its judges ; the next governor will appoint at least one state Supreme Court justice because of the state's age limit rules.
“Before we had our own abortion amendment here in the state of Kansas, I honestly didn't hear much about court appointments, except from advocacy groups,” Governor Kelly said in an interview. “But since the Dobbs decision and then our own decision here in the state of Kansas, it has become more and more of a priority for people. I think people are now more aware than ever of the impact the courts can have on their daily lives.”
Meghan Meehan-Draper, executive director of the Democratic Governors Association, pointing to the right-wing tilt of the Supreme Court and key battles in the courts, said voters need to be reminded of the power that “Democratic governors must appoint to the rule of law.”
The group's efforts could draw the judiciary further into the political fray, with a presidential race already likely to exacerbate polarization. It also underscores how both parties view state courts, once a relative political backwater and often spared some of their harshest attacks, as increasingly important in strengthening policy and ripe for combative electoral politics.
The Supreme Court's Dobbs decision, which overturned Roe v. Wade, provided a major boost in attention to state courts. Donations flooded into races for state court judges elected directly by voters; More than $100 million was spent during the 2022 cycle, nearly double the spending in any previous interim cycle. This is evident from a study by the Brennan Center for Justice.
And in Wisconsin, more than $50 million was poured into a single race for a seat on the state Supreme Court in 2023, dwarfing every other state Supreme Court race in history and creating a highly partisan side was added to the race, with candidates taking on issues such as abortion.
Experts on the independence of the judiciary have long advocated appointments rather than direct elections. They suggest that candidates campaigning on the issue could help inform voters as they choose their governors.
But once upon a time there were policy statements and litmus tests – like then-candidate Donald J. Trump promised in 2016 to nominate only “pro-life judges.” – participation in the campaigns could also threaten the independence of the judiciary.
“There is a line here, and it is not crystal clear where that line is,” said David F. Levi, former dean of Duke University Law School. “It can go off the rails if this becomes indistinguishable from party politics, so that, for example, you get statements that the governor is going to ensure that appointees have committed to deciding matters in a certain way or from a certain perspective. point. That would be very bad.”
Democratic governors have tried to make it clear that they are only looking for righteous lawyers.
“We are doing extensive due diligence,” Minnesota Gov. Tim Walz, chairman of the Democratic Governors Association, said in an interview. “If they're prosecutors, we've talked to the opposing counsel, we've talked to judges, we've talked to the staff about what is this judge's behavior? Do they have a judicial character? Do they have a vision to make the judiciary more inclusive and fairer? Do they recognize that there are systemic racial problems in our justice system and work to solve them? And we don't ask litmus test questions.”
The Republican Governors Association said it has no plans to conduct a similar campaign. The Republican State Leadership Committee, an affiliate organization that focuses on state legislators, manages a fund called the Judicial Justice Initiative which has raised and spent more than $29 million on state court elections over the past decade.
“Every dollar the DGA wants to spend advocating for the appointment of liberal, excessive judges whose actions have already resulted in less safe communities is a dollar Republicans can spend talking to voters about Democrats' inability to address key issues affecting Americans. today – out-of-control crime and adequate living costs,” said Courtney Alexander, a spokeswoman for the group.
The Dobbs decision has also put more political pressure on gubernatorial appointments. In New York, Senate Democrats rejected a nomination by Governor Kathy Hochul, also a Democrat, because they viewed Hector LaSalle, the candidate, as hostile to unions, abortion rights and other liberal positions.
“There is definitely discomfort among some judges and justices at the state level about the increased attention that selection processes” are now receiving, said Douglas Keith, the senior counsel for the Brennan Center's Judiciary Program. But, Mr. Keith said, programs like those of the Democratic Governors Association could clarify issues for voters.
State courts have also proven to be a pipeline to positions on the federal bench; According to a study by the Democratic group, 20 percent of the judges Trump appointed to the federal courts were state court judges.
Mr. Walz, who appointed more than 100 judges during his tenure, including three to the state Supreme Court and nine to the Court of Appeals, said his record on state judges would be critical to his legacy, and that voters are now starting to do so. notification.
“When I was a candidate, I understood theoretically that I could appoint judges,” Mr. Walz said. “Operationally, it will probably be one of the most important things I do as governor is to make sure that these are independent lawyers who follow the rule of law – not supporting me, not supporting an ideology, but the rule of law. And I think once you start explaining that to people, and we've done that here in Minnesota, it makes a huge difference in understanding who you're putting in the governor's office.