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2 James Willard Hurst, The Growth of American Law: The Law Makers 6, 87, 97, 100, 122–43, 230, 251, 360 (Boston: Little, Brown & Co., 1950); Herbert Jacob, The Courts as Political Agencies: An Historical Analysis, in Kenneth N. Vines & Herbert Jacob, eds., Studies in Judicial Politics 18–21, Tulane Studies in Political Science (New Orleans: Tulane University Press, 1962); Evan J. Haynes, The Selection and Tenure of Judges 101–35 (Newark, N.J.: National Conference of Judicial Councils, 1944); Russell D. Niles. The Popular Election of Judges in Historical Perspective, 21 Rec. A.B. City N.Y. 523–38 (1966); and Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846–1860, 44 Historian 337 (May 1983).Google Scholar

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5 These four states are meant to be broadly representative of the national experience with election of appellate court judges during the period from 1850 to 1920. But their selection was dictated by concerns peculiar to the larger project of which this article is an initial report. That larger project probes the links between appellate judges' constituencies and the judges' courtroom behavior, at least to the extent that they were linked. This analysis requires high quality voting and socioeconomic data that can be disaggregated on a county-level basis. Moreover, the larger study seeks to determine the impact of certain intervening variables on the operation of the selection process and the dissenting behavior of judges. The most important of these variables are region, political culture, and the institutional structure of the courts, especially the presence of an intermediate court of appeals.Google Scholar

6 The California Constitution of 1849 provided for popular election of supreme court judges but only after the general assembly had initially filled the posts. The first judicial elections were held in 1850. See Cal. Const. of 1849, art. 6. § 3. Ohio adopted popular election in 1851. See Ohio Const. of 1851, art. 4. § 2 as amended in 1853, art. 6. § 3. Tennessee, like Ohio, had previously appointed its judges by joint ballot of the general assembly until it switched to popular election in 1853. See Tenn. Const. of 1834, art. 6, 5 4, asamended in 1853, art. 6, § 3. Texans began in 1850 to vote for appellate court judges by amendment to the 1845 constitution, although they ceased doing so between 1869 and 1876. In the latter year the Texas voters once again began to elect supreme court judges. See Tex. Const. of 1845, art. 4, § 5. as amended in 1850, art. 4, § 5; Tex. Const. of 1869, art. 5, § 2; Tex. Const. of 1876. art. 5, § 2.Google Scholar

7 The states of the Confederacy proceeded more fitfully than elsewhere 10 adopt popular election of judges, although Mississippi in 1832 had been the first state in the Union to do so. During the 1850s, Alabama, Kentucky, Louisiana, Maryland, Missouri, Tennessee, Texas, and Virginia joined Mississippi. During Reconstruction, however, Louisiana, Virginia, Mississippi, and Texas (1869) jettisoned the elective system, but Arkansas, North Carolina, and Texas (1876) embraced it. Late in the nineteenth century Florida and Georgia did so as well, and Louisiana and Mississippi in the early twentieth century returned to the elective system. Only South Carolina clung from 1832 to 1920 to appointment by joint vote of the legislature; it and with Virginia in 1920 were the only southern states that did not elect their appellate judges.Google Scholar

In the North, Massachusetts was the most prominent example of a stare that relied on appointment to fill vacancies on its high court. See Kermit L. Hall, The Path to Hell Retraced: Popular Election and the Southern Appellate Judiciary, 1832–1920, in David J. Bodenhamer & James W. Ely, Jr., Ambivalent Legacy: The Legal History of the South (University: University Press of Mississippi, 1984). For a synopsis of the constitutional provisions relating to judicial selection in each of the states, see Haynes, supra note 2, 101–35.Google Scholar

8 On the background and development of the popularly elected judiciary, see Joseph H. Smith. An Independent Judiciary: The Colonial Background, 124 U. Pa. L. Rev. 1105 (1976); Haynes, supra note 2; Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776–1860, at 34–96, 300, 303 (Chapel Hill: University of North Carolina Press, 1930); Francis R. Aumann, The Changing American Legal System 185–87 (New York: DaCapo Press, 1969); Lawrence M. Friedman, A History of American Law 110–11, 323–25 (New York: Simon & Schuster, 1973); Simeon Eben Baldwin, The American judiciary 101–4 (New York: Century Co., 1905); Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown & Co., 1945); Hurst, supra note 2, at 122–43; Niles, supra note 2; Glenn R. Winters & Robert E. Allard, Judicial Selection and Tenure in the United States, in American Assembly, [Harry W. Jones, ed.], The Courts, the Public, and the Law Explosion 121–37 (Englewood Cliffs, N.J.: Prentice Hall, 1965); George W. Parkinson, Antebellum State Constitution-making: Retention, Circumvention. Revision (Ph.D. diss., University of Wisconsin, 1972).Google Scholar

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13 Today this notion seems naive. Since the turn of the century bureaucracy has been viewed as the surest means of promoting professionalization. This was not the case, however, during the 1850s when Americans still clung to the traditional notion that popular, majoritarian will was capable of defeating narrow partisanship. See William E. Nelson, The Roots of American Bureaucracy, 1830–1900, at 41, 53 (Cambridge: Harvard University Press, 1983). The most persuasive analysis of these broad developments is found in Robert H. Wiebe, The Search for Order, 1877–1920, esp. 116–17, 120 (New York: Hill & Wang, 1969). For developments relating to the earlier period see R. Kent Newmyer, Joseph Story, Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, forthcoming 1985).Google Scholar

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28 This is not to suggest that strong opposition toward judicial elections ceased. For example, Federal District Judge James M. Love of Iowa in 1877 condemned the practice because it “brings the judicial office into direct connection with party politics and all the bad methods and influences of faction.” Yet even Love acknowledged that “I do not believe that the law for popular election of judges can be changed. Popular privileges, once granted, are not likely to be surrendered.” See James M. Love, The Election of Judges by the People for Short Terms of Office, 3 So. L. Rev. 28, 31 (1877).Google Scholar

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31 All three of these changes in the election system had the objective of reducing the influence of boss-dominated leadership on the political process. The Australian ballot provided voters with an opportunity to cast their votes in secret; the direct party primary tended to undercut the traditional power of party con ventions to control the nominating process; and nonpartisan elections were intended to remove overt partisan considerations from popular voting. Each of these developments is discussed infra at text accompanying notes 41–57.Google Scholar

32 The best discussion of these developments is in Margaret F. Sommer, The Ohio State Bar Association: The First Generation, 1880–1912, at 74–161 (Ph.D. diss., Ohio State University, 1972).Google Scholar

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36 For a fuller discussion of these matters, see Richard W. Boyd, Popular Control of Public Policy: A Normal Vote Analysis of the 1968 Election, 66 Am. Pol. Sci. Rev. 429, 429–46 (1972).Google Scholar

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38 Dubois, supra note 3, at 30, quoting Gerald M. Pomper, Elections in America: Control and Influence in Democratic Politics 25–40 (New York: Dodd, Mead, & Co., 1973). I have relied heavily on Dubois for the discussion in this paragraph.Google Scholar

39 Campbell et al., supra note 37, at 216–65. The evidence is strong that party is even more important in subpresidential elections. See V.O. Key, Jr., The Responsible Electorate: Rationality in Presidential Voting, 1936–1960, at 44, 52–59, 91 (New York: Vintage Books, 1968).Google Scholar

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43 Cal. Const. of 1849, art. 6, 5 2 (1862); Cal. Const. of 1879, art. 6, § 2. See also Arnold Roth, The California State Supreme court, 1860–1879: A Legal History 12 (Ph.D. diss., University of Southern California, 1973).Google Scholar

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46 Ch. 23, 1870 Tenn. Acts. This act ended the practice of special judicial elections; all local civil officers and all judges were to be elected in August. The gubernatorial and legislative elections were held the following November.Google Scholar

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50 States did select different internal formats for the new Australian ballot. Some states, including California and Tennessee, adopted the office-bloc or “blanket ballot” format that listed candidates names under specific offices without regard to party affiliation. Other states, including Ohio and Texas, adopted the party-column format, which resembled a consolidation of the old party-strips placed side by side on the same sheet. See ch. 188, 1889 Tenn. Acts; 1891 Cal. Laws 165; 1891 Ohio Laws 458; ch. 11, 190s Tex. Laws.Google Scholar

51 The nominating process varied substantially. Tennessee and California for at least some time during the last half of the nineteenth century had separate nominating conventions for judicial candidates, while parties in Ohio selected candidates at the regular party conventions. See Certificate of the Bar of Giles County, Tennessee, July 9, 1870, Civil Election Returns, 1870–71, Box 24, Tennessee State Library and Archives, Nashville; Roth, supra note 42, at 15–38; and Sommer, supra note 32, at 74–161.Google Scholar

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57 Data on voting in judicial elections were not systematically collected as part of the Inter-University Consortium for Political Research's Historical Election Returns File. The data reported in this study came from the following sources. California: Statement of the Vote of the State of California, etc. (Sacramento, Cal.: State Printer, 1890–1920); and Civil Election Returns, California, 1850–1890, Records of the Secretary of State, California State Archives, Sacramento. Ohio: Annual Report of the Secretary of State for Ohio (Columbus: Secretary of State, 1864–1920). Tennessee: Civil Election Returns, Boxes 11–24, Tennessee State Library and Archives, Nashville. Texas: Election Returns, 1845–1922, Records of the Secretary of State, Boxes 2–12/506–2–12/840, Texas State Library, Austin; and Supplemental Biennial Report of the Secretary of State (Austin: Secretary of State, 1886–1922).Google Scholar

58 James R. Green, The Supreme Court of Tennessee 265 (Nashville, Tenn.: privately printed, 1962).CrossRefGoogle Scholar

59 See Texas, Election Returns, 1905–1922, Records of the Secretary of State, Boxes 2–12/780–2-12/84, Texas State Library; Supplemental Biennial Report of the Secretary of State (1906–1922); and Tennessee, Civil Election Returns, Boxes 19–24, Tennessee State Library and Archives, Nashville.Google Scholar

60 See, e.g., Stephen E. Lee, Judicial Selection and Tenure in Arizona, 1973 Law and the Social Order 51–80; Barber, supra note 3; Johnson et al., supra note 3.Google Scholar

61 Dubois, supra note 3, at 38–40.Google Scholar

62 Turnout figures were based on the total number of males 21 years of age and over as reported in the decennial census years, with a straight-line interpolation for noncensus years but without any effort to adjust for state-by-state variations in voter eligibility requirements. Thus, these figures probably consistently underestimate turnout, but the pattern over time is the same. On this problem, see Paul Kleppner, The Third Electoral System, 1853–1892: Parties, Voters, and Political Cultures 44 n.40 (Chapel Hill: University of North Carolina Press, 1979).Google Scholar

63 Cal. Const. of 1849, art. 6, § 2 (1862); Cal. Const. of 1879, art. 6, § 2.Google Scholar

64 Ch. 23, 1870 Tenn. Acts.Google Scholar

65 Ohio Rev. Code Ann., § 3505.04 (Baldwin 1982). On developments in Ohio see Francis R. Aumann, The Selection, Tenure, and Retirement of Judges in Ohio, 3 U. Cin. L. Rev. 408–28 (1931).Google Scholar

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75 118 Cal. 55(1897).Google Scholar

76 San Francisco Examiner, Oct. 25, 1898, p. 2, col. 2.Google Scholar

77 Slightly more than one-tenth (12.2%) of all judges were forced to leave office either by removal (7.5%) or by a change in the organization of their courts (4.7%). Judicial removals were restricted to the tumultuous politics of Reconstruction in Tennessee and Texas between 1865 and 1877. On removals see James R. Norvell, The Reconstruction Courts of Texas, 1867–1873. 62 Sw. Hist. Q. 141–63 (1958); Green, supra note 58, at 128–30. California in 1879 provides the best example of the impact of constitutional reorganization of the courts on the judiciary. See Oscar T. Schuck, History of the Bench and Bar of California 521–23 (Los Angeles: Commercial Printing House, 1901).Google Scholar

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80 These percentages are somewhat lower than the average of nearly 50% for state judges first brought to elected judgeships through gubernatorial appointment today. See Dubois, supra note 3, at 105. There is, however, a greater range among the states today than in the period of this study. The explanation for the lower incidence of first accession through gubernatorial appointment remains unclear. Both proponents and opponents of popular election found the practice unacceptable. See Baldwin, supra note 8, at 331–33; and Fleischmann, supra note 29, at 362.Google Scholar

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86 The most important published works on state supreme court dissent rates are Dean Jaros & Bradley C. Canon, Dissent on State Supreme Courts: The Differential Significance of Characteristics of Judges, 15 Midwest J. Pol. Sci. 322 (1971); Bradley C. Canon & Dean Jaros, External Variables, Institutional Structure, and Dissent on State Supreme Courts, 3 Polity 175 (1970); and John W. Patterson & Gregory J. Rathjen, Background Diversity and State Supreme Court Dissent Behavior, 9 Polity 610 (1976).Google Scholar

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88 The data on dissent were collected by reading every supreme court case officially reported between 1850 and 1920 as published in these four states. After 1876 the Texas Supreme Court had only civil appellate jurisdiction; criminal appeals went to the Texas Court of Criminal Appeals.Google Scholar

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