How to Research Your State's Judges Before You Vote in a Judicial Election

Every election the same thing happens to a large number of conscientious voters. They study the governor's race for weeks, they know every Senate candidate's position on the tax code, and then they reach the bottom of the ballot, where five people they have never heard of are asking for a ten-year term on the court that decides their custody case, their lease dispute and their traffic ticket. They guess. Some pick the name that sounds most trustworthy. Some leave the line blank. Some vote for the candidate with the nicest ballot designation.

I understand why. The federal bench, which the President fills with Senate consent under Article II, gets all the attention. But most of the law that touches your life is made, applied and appealed in state courts, which is why State Supreme Courts Decide More of Your Life Than the Nine in Washington argues that your state's top court may matter more to your daily life than the Supreme Court in Washington. And in most states, at least some of those judges answer to you, at the ballot box. A vote you cast blind is not a duty fulfilled. It is a vote handed to whoever's name was easiest to remember.

The good news is that judges leave the most detailed public record of any candidate on the ballot, because judging is writing. Here are the steps.

Step 1: learn how your state picks its judges

There is no single American system. States use some mix of these methods, and the mix can differ by level of court, so the first job is to learn which one applies to the seat on your ballot.

• Partisan elections. Candidates run with a party label, as in a legislative race.
• Nonpartisan elections. Candidates run without a party label, though the voters often know the affiliations anyway.
• Gubernatorial or legislative appointment. The governor, or in a few states the legislature, selects the judge, often from a list.
• Merit selection with retention elections. A commission screens applicants and the governor chooses from its list. After a term, the judge stands for a yes-or-no retention vote with no opponent. States using this model include Missouri, the state that gave the system one of its common names, and others around the country.

If you want the full comparison, Elected, Appointed or the Missouri Plan, How the States Choose Their Judges lays the systems side by side. For this step, do three things. Find your state constitution's article on the judiciary on your legislature's website. Find the seat on your sample ballot: your county elections office posts one weeks before Election Day. And find out whether it is an election between candidates or a retention vote, because the research differs. A retention vote asks one question: has this judge done the job well enough to stay?

A fact worth knowing: retention voters almost never remove anyone, which is why the exceptions get remembered. In Iowa in November 2010 voters removed three justices of the state supreme court after the court's decision striking down the state's marriage statute in Varnum v. Brien. Whatever you think of the decision, the vote showed that retention elections are not decoration.

Step 2: find the judge's written opinions

This is the step that separates an informed vote from a guess, and it is the one most people skip. Judges, unlike legislators, explain themselves in writing. An opinion states the facts, the question, the rule and the reasoning. A candidate with a judicial record has already told you how he or she thinks.

Where to find them:

1. Your state court system's website. Appellate courts post their opinions, usually searchable by judge and date. Many also post oral argument audio.
2. Free legal databases. Google Scholar's case law search covers many state and federal opinions at no charge. Your public library, and especially a county law library, may give access to the paid services.
3. The judge's own page. Sitting judges are often listed on the court's website with a biography, and candidate campaign sites may link to sample opinions.

Do not read fifty opinions. Read three: one on a subject you care about, one in a case where the judge wrote separately (a concurrence or a dissent, which show where the judge differs from colleagues), and one from a routine matter, to see how the judge writes when no one is watching. Ask yourself the same questions each time.

• Does the opinion start from the text? Does the judge quote the statute or constitutional provision and work from its words, or reach for the outcome and then find the law to fit?
• Does the judge decide only what the case needs? The restraint described in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not has a state-court version: a judge who decides the narrow question is usually a judge who respects the legislature.
• Is it written so a citizen can follow it? A judge who cannot explain a ruling plainly is a judge whose ruling you cannot hold accountable.

If the candidate is a trial judge, the records are thinner, because trial courts produce fewer published opinions. In that case, look at how the judge's decisions fared on appeal, which is the next step.

Step 3: check the reversal record

Reversal is the most useful number most voters never look at. When a trial judge's decision is appealed and the appellate court sends it back, the appellate opinion says why. A judge who is reversed occasionally is normal; every judge is. A pattern is information: a judge reversed repeatedly for ignoring a statute's plain text, for admitting evidence he should have excluded, or for sentencing outside the permitted range is telling you something about method.

Be careful and be fair.

1. Reversal rates need context. A judge who handles complex cases will be appealed more than one who handles routine ones. Count nothing as a verdict until you have read one or two of the appellate opinions that reversed.
2. Look for the reason, not the headline. Reversal for a harmless procedural slip is not the same as reversal for misreading the law.
3. Look for affirmances too. An opinion upheld by a higher court on a hard question is evidence of sound work.

Where do you find this? Appellate opinions are searchable by the name of the lower-court judge in many state databases. Local bar publications and the court's clerk's office can also tell you how to search. If the information is not easy to find, say so to your county party, your local paper or a candidate forum. That is a legitimate civic question.

Step 4: read bar evaluations critically

Many state and local bar associations rate judicial candidates, and a few publish detailed evaluations based on surveys of lawyers who appeared before them. These are a real source of information, but treat them the way a good editor treats a press release.

• Who is being surveyed? Lawyers who litigate before the judge know the courtroom manner and the preparation. They may also be wary of criticizing someone who will hear their next case, and the answers can skew polite.
• What is the bar's own outlook? Bar associations are professional bodies with views of their own. A rating is a data point about how lawyers see the candidate, not a certificate of how the candidate will rule.
• What are the categories? "Qualified" and "Highly Qualified" may mean experience and temperament more than judicial philosophy. Read what the rating measures before you give it weight.
• Is there a minority view? Some states have more than one bar association, and their ratings can differ. If two bars disagree, read both explanations.

A rule of thumb that works: use bar ratings to learn about competence and temperament, and use the judge's own opinions to learn about philosophy. Do not let one substitute for the other.

Step 5: check the campaign finance filings

Judicial campaigns raise money, and the Supreme Court has recognized that the money can raise a constitutional question. In Caperton v. A.T. Massey Coal Co. in 2009, the Court held that due process required a West Virginia justice to step aside from a case where a party's chief executive had spent an extraordinary sum to help elect him. The Court described that as an extreme case, but it is a reminder that who funds a judge is a fair question.

Campaign finance for state judicial races is usually filed with the state elections agency or the secretary of state, and most states post the reports online. Look for:

• Large contributors who are likely to appear in court. Law firms, unions, trade associations and litigants regularly give. That is lawful and sometimes inevitable, but it is something you are allowed to weigh.
• Independent spending. Outside groups often spend more than candidates. Find out who they are.
• Self-funding and small donors. Who is behind the candidate who has few big checks?

Two cautions. Contributions show who supports a candidate, not who controls him, and you should not accuse a judge of corruption for taking a lawful check. And the other side of the argument deserves its due: a judicial election system without private contributions would favor candidates with name recognition, such as incumbents and the already famous. Reasonable conservatives disagree about whether elected or appointed judges are better, and some prefer the accountability of the ballot while others prefer the insulation Hamilton praised in Federalist 78. Either way, you can only weigh what you can see, and filings are public.

Step 6: know the ethics rules and what a candidate may say

This step prevents a common frustration. You go to a candidate forum, you ask a good question about how the candidate would rule on a hot issue, and the candidate politely declines to answer. That is not evasion. It is the judicial conduct code.

Many states base their judicial conduct codes on the American Bar Association's Model Code of Judicial Conduct, which asks judges and candidates to avoid statements that commit them to particular outcomes in cases that may come before them. The code exists because a judge who has promised a result has prejudged the case, and your right to an impartial judge belongs to the litigant, not the candidate.

Two Supreme Court decisions define the lines, and they are worth knowing.

• Republican Party of Minnesota v. White (2002). The Court struck down a rule that barred judicial candidates from announcing their views on disputed legal and political issues, holding that it violated the First Amendment. So a candidate may speak about his philosophy and his views on legal questions in general, though many still choose to say little and to avoid promising how they will decide a specific pending case.
• Williams-Yulee v. Florida Bar (2015). The Court upheld a Florida rule that bars judicial candidates from personally soliciting campaign contributions, holding that the state's interest in public confidence in the judiciary justified the rule. So a candidate usually has a committee ask for the money.

What does this mean for you? Ask about method, not outcomes. "Where do you start when a statute is ambiguous?" is a question a candidate can answer and a good one to ask. "How would you rule on this pending case?" is one a careful candidate will, and should, decline. If a candidate answers every question with a promise, the promise is a warning sign. For a deeper treatment of what a method question reveals, see Roberts Said Judges Call Balls and Strikes. Conservatives Still Argue Over It.

A plain-language checklist

Print this and take it to the ballot box.

1. Seat: Election or retention? Partisan or nonpartisan? Which court?
2. Opinions read: Three, in different kinds of case. Notes on method.
3. Reversals: A pattern, or one-offs? Why?
4. Bar ratings: What did they measure, and who was surveyed?
5. Money: Top donors and independent spenders, from the state's filings.
6. Forum: Did the candidate answer a question about method without promising outcomes?
7. Decision: Based on what the judge has written, or on a name?

You can finish this in an evening for each contested race. Many voters spend longer choosing a restaurant.

Why it is your job

A last objection, the strongest. "I am not a lawyer. Shouldn't the experts choose judges?" Appointment systems have a respectable defense, and Hamilton made it in Federalist 78: judges need independence and good behavior tenure, because a judge who fears the next election might bend to the popular mood. That is a serious argument. But in the states where the people elect judges, the constitution has given the voter the decision, and a voter who has not looked is not exercising it, only delegating it to the loudest campaign.

You do not need a law degree to ask whether a judge reads the text, decides the case before him and treats litigants fairly. You need an evening and a library card. Jurors are not lawyers either, and Jury Duty Is the Rule of Law in Your Own Town, So Answer the Summons shows how much the republic trusts ordinary people to judge. Read the record, then cast the vote. And if you want practice reading a court's actual filings before an election, our guide How to Read a Federal Court Docket Without a Lawyer or a Big PACER Bill teaches you how to follow a case from complaint to opinion.

The case in brief

1. Most state judges answer to voters in some way, and most of the law that affects your family is made in state courts, so a judicial ballot line is not a throwaway.
2. Learn your state's system first, because an election between candidates and a yes-or-no retention vote call for different research.
3. A judge's written opinions and reversal record are the best evidence of method; bar evaluations tell you about competence and temperament, not philosophy.
4. Campaign finance filings are public; weigh them fairly, and remember that a lawful contribution is not proof of corruption.
5. Candidates may discuss their philosophy under White but may decline to promise outcomes, so ask about method.

What you can do: before your next election, find the judicial seats on your sample ballot, read three opinions from one candidate on your state court's website, and write down your reasons before you vote.