A decade ago, the West Virginia Legislature newly-led by Republican majorities voted to make judicial races nonpartisan.
“This is intended to remove any perception that those individuals might be beholding to a particular party organization or particular group of people with whom that party is perceived as being affiliated,” said then-House Judiciary Chairman John Shott, a Republican from Mercer County.
The vote in the House of Delegates that year was 90-9. The vote in the state Senate was 33-1.
A little pushback came mostly from Democrats, who for many years had dominated the state’s political landscape.
“By not knowing what party a person is in, you are deprived of information that you otherwise would have in any other election,” said then-Delegate Barbara Fleischauer, a Democrat from Monongalia County.
Today, a majority of the Republican dominated West Virginia state Senate voted in favor of a bill to reintroduce partisan judicial elections, essentially making the same argument Fleischauer made in 2015.
The senators who argued in favor of the bill today said West Virginia voters need the tool of party identification to have a better sense of which way judges might lean on their rulings from the bench.
And some senators arguing in favor of partisan labels for judges made an argument that although impartiality might be the ideal — in their view, the judicial system has been infected with bias.
“It’s a way to keep liberal judges from slipping through the cracks. And if you don’t think there’s a difference between liberal and conservative judges, you’re just not being honest. Have you seen the news for the past four years?” said Senator Tom Willis, R-Berkeley.
“OK, so voters are smart. They don’t have a lot of time to do a lot of research, but they’re smart. They’re smart. They understand that people come into these jobs with an ideology. We don’t live in a perfect world where you can honestly say somebody’s coming in without an ideology.”
Senate Bill 529, requiring party affiliations be listed for all candidates, passed on a 22-12 vote, which is a relatively narrow margin in a chamber where Republicans outnumber Democrats 32-2.
The bill now goes to the House of Delegates. Debate in the Senate was feisty and bipartisan.
Commentary by T.J. Meadows: Making judicial elections partisan again accomplishes nothing.
Senate Judiciary Chairman Mike Stuart, a former state Republican Party chairman, said he used to be in favor of nonpartisan judicial elections but has since changed his position.
“I was somebody who said, from a Pollyanna standpoint, that we need nonpartisan election of judges, that it will bring us what I call a better application of the law; justice must be blind,” said Stuart, R-Kanawha.
“We love those terms. We fundamentally believe that as Americans, that equal application of the law is what we want, it’s what we desire. It’s an aspirational term, because it’s not always real.”
Now Stuart, also a former U.S. attorney for Southern West Virginia, said he has witnessed “lawfare” at the national level in the judicial system in recent years. So he said he supports partisan judicial elections.
“It restores West Virginia to the mistake that we made a few years back and helps voters get their arms around the idea of at least some idea of who they’re voting for.”
Senator Ryan Weld, R-Brooke, said he voted in favor of nonpartisan judicial elections when he was a state delegate “because we saw that need to remove that taint of politics.”
So for consistency, he cast a vote against this bill.
“I haven’t had one person in my district walk up to me or email me and say, ‘You know, I just wish we had more partisan fights in judicial races,'” Weld said.
Senate Minority Leader Mike Woelfel, D-Cabell, also voted for nonpartisan judicial elections in 2015.
“Judicial officers are different from other politicians. We want them to be above the judicial fray. We want them to be neutral, third parties that adjudicate disputes that end up in a courthouse,” Woelfel said.
Senator Joey Garcia, D-Marion, said important questions for voters to ask about judicial candidates include elements beyond political party:
“What is their experience? How many years has someone practiced? What type of law did they do? They practice criminal law — have they ever done child abuse and neglect? Actually, that’s one of the things that judges spend most of their time in circuit courts on these days. Are they a good lawyer? Are they a good community member?”
Weld, Woelfel and Garcia are attorneys.
Willis, a lawyer who is the lead sponsor of the bill, said party identification would give voters a simple tool to know more about the worldview of judicial candidates.
“Typically, all we know about some of these candidates is they went to this school, they work for this firm; now they’re running and that really doesn’t tell you anything. And I think that the proposition that judges are above the political fray is just not consistent with the facts that we see on the news every single day,” he said.
“Now I think fortunately in West Virginia, we’re blessed that this virus of politicization in the judicial decisions that are handed down hasn’t infected us so much. But to maintain the integrity of our court system, we need to make sure that we’re electing judges that are going to respect the Constitution, that are going to respect the rule of law, and the voters have an idea who those judges are going to be.”
Willis added that it is often “extremely difficult for busy West Virginians to know who they’re voting for, to find information. A lot of these candidates are intentionally vague on their social media posts. Trust me, I’ve done the research myself.”
One of the main limitations of judicial candidates expressing their views on positions is the West Virginia Code of Judicial Conduct, which would continue to apply.
Canon 4 says a judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.
Key elements say judges and candidates cannot make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.
And in connection with cases, controversies or issues that are likely to come before the court, judges or judicial candidates cannot make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
So while judicial candidates may make broad statements, such as describing themselves as strict constitutionalists, for example, they are often very cautious about making statements about particular policies.
West Virginia Supreme Court Justice Beth Walker, who was elected in the state’s first nonpartisan judicial elections in 2016, spoke one week ago before the Senate Judiciary Committee. Walker ran unsuccessfully for the Supreme Court as a Republican in 2008.
“Election of judges is incredibly important, for the sole purpose of making judges accountable to the public and more transparent. I think judges should go out and talk to the public. I welcome the election of judges,” Walker told senators on the Judiciary committee.
“But when it comes to the nonpartisan part of it, what we do as judges is not political. When you take nonpartisan away and inject partisan politics into the election of judges, it calls into question that very important fairness impartiality, and neutrality.”