Locked out of power on the Supreme Court and still playing catch-up against Republicans in the federal judiciary, Democrats are hoping to gain a political advantage on a less visible but still important playing field: the state courts.
After flipping the Arizona governor’s seat from Republican to Democratic last year, Gov. Katie Hobbs has appointed 15 judges to the state’s Superior Courts. In five years leading deeply red Kansas, the Democratic governor, Laura Kelly, has named two justices to the Court of Appeals and one to the State Supreme Court.
Governors have the power to appoint judges in nearly every state. These responsibilities are set to take center stage in political campaigns this year, as the Democratic Governors Association begins a multimillion-dollar effort, called the Power to Appoint Fund, aimed at key governor’s races.
The fund, with a $5 million goal, will focus especially hard on two open seats in 2024 battlegrounds: New Hampshire, where the governor has the power to appoint state court justices, and North Carolina, which elects its justices; 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 issue here in the state of Kansas, I honestly didn’t hear much about court appointments except from attorney groups,” Governor Kelly said in an interview. “But since the Dobbs decision and then our own decision here in the state of Kansas, it’s become more of a forefront issue with folks. People, I think, recognize now more than ever the impact that the courts can have on their daily lives.”
Pointing to the rightward tilt of the Supreme Court and important statewide court battles, Meghan Meehan-Draper, executive director of the Democratic Governors Association, said that voters needed to be reminded of the power “Democratic governors have to appoint judges who are going to uphold the rule of law.”
The group’s effort could bring the judiciary further into the political fray, with a presidential race already exacerbating polarization. It also underscores how both parties see state courts, once a relative political backwater and often spared from some of their harshest attacks, as increasingly critical in cementing policy, and ripe for combative electoral politics.
The Supreme Court’s Dobbs decision, which overturned Roe v. Wade, turbocharged the attention paid to state courts. Donations flooded into races for state court judges who are directly elected by voters; during the 2022 cycle, more than $100 million was spent, nearly twice the spending seen in any previous midterm cycle, according to a study by the Brennan Center for Justice.
And in Wisconsin in 2023, more than $50 million poured into a single race for a State Supreme Court seat, dwarfing any other state high court race in history and injecting a highly partisan tilt into the race, with candidates weighing in on issues including abortion.
Experts on the independence of the judiciary have long argued for appointments rather than direct elections. They suggest that candidates campaigning on the issue could help inform voters as they choose their governors.
But once policy proclamations and litmus tests — such as then-candidate Donald J. Trump pledging in 2016 to nominate only “pro-life judges” — enter the campaigns, it could also threaten judicial independence.
“There’s a line here, and it’s not crystal clear where that line is,” said David F. Levi, a former dean of the Duke University Law School. “Where it can go off the rails is if this just becomes indistinguishable from partisan politics such that you get statements, for example, that the governor is going to make sure that appointees have committed to deciding cases in a certain way or from a certain vantage point. That would be very bad.”
Democratic governors have sought to make clear that they are only looking for fair-minded jurists.
“We do massive due diligence,” Gov. Tim Walz of Minnesota, the chair of the Democratic Governors Association, said in an interview. “If they’re prosecutors, we talked to opposing counsel, we talked to judges, we talked to staff that are in there about what is the demeanor of this judge? Do they have a judicial temperament? Do they have a vision of making the judiciary more inclusive and fair? Do they recognize that there are systemic racial issues in our justice system and working to try and fix those? And we don’t ask litmus-test questions.”
The Republican Governors Association said it had no plans to run a similar campaign. The Republican State Leadership Committee, an affiliated organization that focuses on state legislatures, runs a fund called the Judicial Fairness Initiative that has raised and spent more than $29 million over the past 10 years on state court elections.
“Every dollar the D.G.A. wants to spend advocating for appointing liberal, out-of-touch judges whose actions have already resulted in less safe communities is a dollar Republicans can spend talking to voters about Democrats’ failure to address the top issues that are affecting Americans today — out-of-control crime and adequate cost of living,” said Courtney Alexander, a spokeswoman for the group.
The Dobbs decision has also put more political pressure on appointments made by governors. In New York, Democrats in the State Senate rejected a nomination by Gov. Kathy Hochul, also a Democrat, because they viewed Hector LaSalle, the nominee, as hostile to unions, abortion rights and other liberal positions.
“There’s absolutely discomfort among some judges and justices at the state level at the increased attention that selection processes” are now receiving, said Douglas Keith, the senior counsel in the Brennan Center’s Judiciary Program. But, Mr. Keith said, programs like the Democratic Governors Association’s could clarify issues for voters.
State courts have also proven to be a pipeline for positions on the federal bench; 20 percent of the judges that Mr. Trump appointed to the federal courts were state court justices, according to a study by the Democratic group.
Mr. Walz, who has appointed more than 100 judges during his tenure, including three to the State Supreme Court and nine to the state Court of Appeals, said that his record on state judges would be critical to his legacy, and voters are starting to notice.
“When I was running, I theoretically understood I could be appointing judges,” Mr. Walz said. “Operationally, it’ll probably be one of the most important things that I do as governor, of making sure that these are independent jurists who follow the rule of law — not supporting me, not supporting an ideology, but rule of law. And I think once you start to explain that to people, and we did it here in Minnesota, it makes a huge difference to understand who you put in the governor’s office.”
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