Minnesota Law

Fall 2021
Faculty Focus

Author in Question: Professor Herbert Kritzer

Marvin J. Sonosky Chair of Law and Public Policy

Professor Herbert Kritzer

 Professor Herbert Kritzer authored Judicial Selection in the States: Politics and the Struggle for Reform, published by Camridge University Press in April 2020. This comprehensive and insightful work that provides an unprecedented examination of the process and politics of how states select and retain judges. 

Professor Kritzer recently answered a few questions about his book and the process of researching and writing it.

What inspired you to write a book on this topic?

When working on my 2015 book on state supreme court elections since 1946 (Justices on the Ballot, Cambridge University Press), I found that many states that used popular elections to choose state supreme court judges changed their selection systems. New York, for example, ended elections for the state’s highest court (the Court of Appeals), many states adopted a system that used a nominating commission to create a list from which the governor must choose (with appointees subject to referendums for retention), some states switched from partisan to nonpartisan elections, and a few adopted other systems. 

I was curious about the politics underlying the debates over whether to change the selection system. I hypothesized that some debates would be dominated by political concerns about partisan advantage and/or policy goals while others would be dominated by concerns about the professionalism of the judges. 

What are some key takeaways you would like readers to get from the book?

First, determining how to select state judges is a work in progress. Changes are frequently suggested, debated, and made. Second, specific efforts to make changes differ based on the importance of concerns about politics/policy versus legal profes- sionalism. Finally, over the 40 years covered in the book, there has been a shift from reform efforts dominated by concerns about legal professional- ism to efforts dominated by partisan politics and policy concerns.

Two examples of the latter have been the reintroduction of explicit partisanship in state supreme court elections in North Carolina (in 2018) and in Ohio (just this year), and the effort in several states successful—at least partially in two states—to free the governing from the constraints of having to choose from a list of nominees prepared by a nominating commission. 

What view, if any, do you take in the book on the threshold question of whether judges should be selected by appointment or through election at the state level?

I take no position on that question in this book. I did take a position in Justices on the Ballot. I suggested a system of appointment using a professional screening organization combined with judicial performance evaluations and limited use of referendums regarding whether a justice should continue in office (“retention elections”); I suggest that such elections should be limited to when a judge’s performance has been assessed as subpar or when a petition is brought by voters.

"I hope the book provides an understanding of the current politics underlying efforts to modify systemsof judicial selection, and particularly how those politics are reflective of the current level of partisan polarization.”
Professor Herbert Kritzer

What were you hoping to accomplish in publishing this book?

I hope the book provides an understanding of the current politics underlying efforts to modify systems of judicial selection, and particularly how those politics are reflective of the current level of partisan polarization. 

What distinguishes this book from other works about judicial selection?

Although there have been several excellent studies of the history of judicial selection and the politics involved in some of the major changes that occurred in the 19th century, there has been minimal consideration by scholars of the contemporary politics involved in changing judicial selection beyond individual state case studies. My book provides a broad overview that helps readers understand what drives the “reform” process.

What is your best “elevator pitch” for someone to purchase and read this book?

The history described inJudicial Selection in the Statesshows that debates regarding changing judicial selection since 2000 have been dominated by partisan political concerns, and particularly by efforts of Republican and conservative interests to fashion selection systems that they believe will favor those interests. That is highlighted by the recent change in Ohio to have fully partisan appellate court elections, a move driven by Republicans in the wake of Democrats winning several state supreme court elections. Republicans clearly believe that in the current climate, identifying the political party of supreme court candidates on the ballot will favor Republican candidates.

Anything else you would like to share?

While researching this book, I was struck by the frequency of litigation related to state judicial selection. My current project is focused on that. My research assistants have now identified litigation in each of the 50 states and have found over 800 cases. Most of that litigation is related to judicial elections, although a few cases deal with major issues in the selection process.