As our discussion in Chapter 6 makes clear, how judges are selected shapes the power dynamics of the judicial tug of war. This makes judicial selection itself a source of heated conflict, the subject we take up in Chapter 7. We use our judicial tug-of-war framework to explore how the parties respond or try to change existing judicial selection mechanisms. Specifically, as we show, the greater the misalignment between the ideological preferences of attorneys and politicians, the greater the incentives political elites will have to introduce ideological considerations into the judicial selection process. Understanding this dynamic, we argue, is key to both explaining and predicting attempts at judicial reform: Under current ideological configurations, conservatives will, depending on how liberal they perceive the bar to be, back reform efforts oriented toward partisan elections and executive appointments, while liberals will work to maintain merit-oriented commissions. We explore the contours of this predictive framework with three illustrative case studies: Florida in 2001, Kansas in 2011, and North Carolina in 2016.

It took three tries for Arkansas to make the change from partisan to nonpartisan elections. Twice, in 1970 and 1980, proposals for revising the state constitution that included changing to nonpartisan judicial elections were rejected by the voters. By 1999, when yet a third proposal was authorized by the legislature, Republican strength in the state had increased substantially. However, there were many more Democrats running for judicial office than Republicans. Because, historically, primary elections were entirely the responsibility of the parties, the parties set and collected filing fees from candidates running in their party primaries. Filing fees from judicial candidates constituted a significant source of revenue for the Democratic Party but not for the Republican Party. The combination of Democratic concerns that Republicans would start winning an increasing share of judicial offices and the Republican desire to deprive the Democratic Party of the revenue from filing fees paid by large numbers of judicial candidates provided the motivation for the legislature to pass and send to the voters another amendment changing to nonpartisan elections.

West Virginia is the most recent state to have changed from partisan to nonpartisan elections for its judges, with the first nonpartisan elections occurring in 2016. Impetus for change came in significant part after controversial elections for the West Virginia Supreme Court of Appeals, one in 1988 and another in 2004. However, those controversies were not enough to produce the change; it took the capture of the West Virginia legislature by the Republican Party, which had long advocated for nonpartisan elections, to produce the 2015 legislation that made the change. Democratic legislators were divided about the change, with some voting in favor and some opposed; the Democratic governor signed the legislation. Unrelated to the change in election format, in 2018 the justices of the West Virginia Supreme Court of Appeals became embroiled in allegations of misuse of government property and extravagant expenditures on their offices. These allegations led to three justices resigning, one of whom pled guilty to criminal charges, and a second being convicted at trial and sentenced to prison.

North Carolina could be described as the archetype of political/policy motivation in states changing their judicial selection/retention systems. Although the first change from partisan to nonpartisan elections came in response to litigation, most of the changes to nonpartisan elections were made when the Democratic Party controlled the legislature, but Republican judicial candidates were having increasing success in partisan judicial elections. Once Republicans obtained political control in the state, the legislature sought to manipulate judicial selection/retention to advantage Republicans, albeit sometimes being hoisted on their own petard.

Utah was the last state where the voters approved the adoption of a Missouri Plan system. That happened in 1985, but the antecedents of that change can be traced to the mid-1940s when Utah voters approved a constitutional amendment empowering the legislature to decide how state judges should be selected and retained with the specification that partisan politics could not be an element of the process. In 1967, the legislature adopted many elements of the Missouri Plan by requiring the governor to fill vacancies, either interim or at the end of a term of an incumbent who did not run for reelection, from a list of candidates forwarded by a nominating commission. Incumbents faced either a nonpartisan election if an opponent filed to run or a retention election if there was no opponent. In 1985, as part of a larger process of constitutional revision, the voters approved a new judicial article that removed the legislature’s power to determine the means of judicial selection/retention and installed a modified Missouri Plan system.

One of the motivations for changing judicial selection in Mississippi was court modernization. In the 1970s, Mississippi's judicial systems ranked last on an index of legal professionalism. However, a second motivation was more political: it came in response to demands, and lawsuits, from the African American community to revise the judicial districts from which trial judges were elected in order to increase the number of African American judges. There was also a touch of partisanship involved because not long before the legislature voted to switch to nonpartisan judicial elections, a small number of incumbent judges running for reelection switched from the Democratic Party to the Republican Party. The legislature adopted nonpartisan judicial elections in 1994 on votes that did not evidence significant partisanship.

Georgia switched to nonpartisan judicial elections in 1983. The change did not reflect an effort by Democrats to protect Democratic judges from increasing Republican strength. Instead the change was part of a general overhaul of the state constitution, including modernizing the court system. The committee charged with redrafting the judicial article of the constitution briefly considered, but then dismissed, the idea of adopting some form of the Missouri Plan. There was a minor indication of partisanship in one vote on the change when a Democrat offered an amendment to delete the phrase “on a nonpartisan basis,” which would have left the choice of partisan or nonpartisan elections as a matter of ordinary legislation; a slight majority of Democrats voted in favor of the deletion, but almost all of the small number of Republicans in the House voted against the deletion. The revised constitution, including the changes to judicial elections, was overwhelmingly approved by the voters in 1983.