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The Politics of Judicial Opposition
Journal of Institutional and Theoretical Economics (2010)
  • John J. Donohue, Stanford Law School

I was pleased to learn from Joanna Shepherd’s interesting paper about the range of mechanisms by which state appellate court judges are selected and retained (SHEPHERD [2010]). My passing acquaintance with this important issue harkens back to my days on the faculty at Northwestern Law School. While living in Chicago, I repeatedly had to vote for judges about whom I knew nothing. It was not a pretty exercise in democracy at work, but I can truthfully say that I never tried to punish a judge for a judicial decision since I never knew anything that any judge I voted for (or against) had ever done. In fact, my only real connection to a judge in Chicago came when Project Greylord led to the filing of corruption charges against a large number of Chicago judges, one of whom killed himself in my health club one afternoon shortly after his indictment.

I now know that most state appellate judges must be either reelected by the voters or reappointed by another governmental branch. Only Rhode Island gives its appellate judges lifetime appointments, while in New Hampshire and Massachusetts Supreme Court judges can serve only until age 70. Other states have chosen various combinations of selection and retention methods, which Shepherd breaks down into four basic types. First, judges selected through gubernatorial appointment and merit plans are retained through gubernatorial reappointment, legislative elections, unopposed retention elections, or reappointment by a judicial nominating commission.

Second, judges selected through legislative appointments are retained through legislative reappointments. Third, judges who are originally elected in partisan elections are retained through partisan elections or unopposed retention elections. And finally, judges originally elected in nonpartisan elections are retained only through nonpartisan elections. (SHEPHERD [2010, p. 90] outlines each state’s methods of selection and retention in Table 1.)

  • judicial opposition,
  • politics
Publication Date
Citation Information
John J. Donohue. "The Politics of Judicial Opposition" Journal of Institutional and Theoretical Economics Vol. 166 (2010)
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