On quiet judicial turnover

State judicial elections sometimes produce extreme cases of court turnover, either because interest groups target a group of judges for removal (something I explore in this article), or because an election frenzy sweeps out all (or virtually all) judges affiliated with a certain party (something I explore in more detail here). Such rapid turnover has significant consequences for the courts: the loss of institutional memory, the learning curve for an entire set of new judges, and sometimes radical changes in court culture can all result from an election sweep.

But judicial appointment systems are not immune from significant turnover as well, especially if they are combined with mandatory retirement ages. In a much quieter and more incremental way, an entire generation of state judges can be replaced by a  governor in the course of the few years. Massachusetts provides the most recent example: with yesterday’s confirmation of Scott Kafker to the state’s Supreme Judicial Court, Governor Charlie Baker has now appointed five of the court’s seven members.

Incremental change avoids many of the problems of party sweeps, and carries many direct benefits. New blood and new energy come into the system, and institutional memory is generally preserved. But the frequency of new state judicial appointments is often given little attention. For all the emphasis placed on a President’s ability to reshape the federal judiciary, it is worth remembering that mandatory retirement ages (which exist in all but three states) give governors or legislatures even more power to shape their respective state courts.

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