After looking into the history of many of our local judges and their questionable decisions I did some digging. Here is what I came across.
The scenario you are describing is a widely recognized political maneuver known as strategic retirement (or the "resign-and-appoint" model). When judges utilize this method to pass their seat to a preferred successor, it is often called judicial succession planning. [1, 2, 3, 4]
While the general term "clearing the field" applies here, the mechanics of how this works in the judiciary are unique and create massive advantages for the incoming judge. [5]
The Mechanics of the Maneuver
This strategy typically unfolds in states that use contested elections to choose judges: [6]
1. The Midterm Resignation: An incumbent judge who plans to retire chooses not to wait until the end of their term when an open election would take place. Instead, they resign early—often precisely timed around election filing deadlines. [6, 7, 8]
2. The Gubernatorial Appointment: The early resignation legally creates a temporary "vacancy". This triggers a state law allowing the governor to fill the seat by appointment rather than a public vote. [6, 7, 9]
3. Canceling or Rigging the Election: Depending on state laws, this move can drastically alter the democratic process:
• The Power of Incumbency: The appointed judge takes the bench immediately. When the next election finally occurs, they run not as a hopeful challenger, but with the immense advantages of an incumbent judge (name recognition, elite backing, and the title of "Judge" on the ballot).
• The Election Postponement Loophole: In states like Georgia, the loophole is even more potent. By law, if a judge resigns within a certain window before an election, the upcoming election is legally canceled and pushed out by two years to give the appointee time to serve. Strategists have even used this to nullify primary elections that were already scheduled. [8, 9]
Why It's Called "Succession Planning"
When judges coordinate their departure with the executive branch, critics call it a way for judges to "bequeath" their seats. The outgoing judge ensures their seat stays within their preferred political party or ideological faction, effectively bypassing the unpredictability of a standard primary or general election. [2, 4, 10]
Is 'resign-and-appoint' model not gaming the system?
Yes, it is absolutely considered "gaming the system." Legal scholars, voting rights advocates, and political scientists widely describe this practice as a deliberate exploitation of statutory loopholes to bypass democratic accountability.
While the maneuver is entirely legal, it fundamentally subverts the original intent of the law.
Why It Is Considered Gaming the System
State laws allow governors to appoint judges to ensure that a courtroom doesn't sit empty if a judge unexpectedly passes away or has to step down for an emergency. The system was designed for emergency continuity.
When used strategically, however, it turns an emergency backup plan into a permanent political tool:
• Insulating from Voters: It removes the choice of an open seat from the voters and places it in the hands of a single politician (the governor) and backroom political insiders.
• The Power of the Title: Studies show that incumbent judges rarely lose elections. By getting appointed first, a lawyer gets to put "Incumbent Judge" next to their name on the ballot, which is an overwhelming psychological advantage for voters who don't follow down-ballot judicial races closely.
• Chilling Competition: Potential challengers who would gladly run for an open seat will often refuse to run against a sitting, newly appointed incumbent who has the full backing of the state's political establishment.
Public and Legal Backlash
Because this practice so clearly games the system, it has faced major pushback:
• Lawsuits: In states like Georgia and Minnesota, voters and prospective candidates have sued to stop these canceled elections, arguing they violate the state constitution's mandate that judges be elected. However, state supreme courts have repeatedly ruled that the text of the law allows it, even if the spirit of the law is violated.
• "Ghost" Retirements: Critics frequently point out the extreme timing of these retirements—sometimes occurring just days or weeks before a primary—proving the timing is entirely calculated to block challengers rather than a sudden health or personal necessity.
Could this type of political organization be considered a "cartel"
Yes, political scientists, economists, and legal scholars explicitly use the term "political cartel" (or the cartel party thesis) to describe this exact type of behavior.
While we usually think of cartels in business—like oil companies or drug syndicates colluding to fix prices and lock out competitors—the exact same logic applies here. Instead of fixing prices, political actors collude to fix the political market and lock out democratic competition.
Why the Comparison Fits Perfectly
• Collusion Over Competition: In a healthy democracy or a free market, actors are supposed to compete. When faction-aligned candidates secretly agree on who will run and who will drop out, or when a judge and a governor coordinate a retirement to hand over a seat, they are replacing open competition with a backroom deal.
• Barriers to Entry: Business cartels create artificial barriers to prevent new businesses from entering the market. By using the "resign-and-appoint" loophole, political insiders create a massive barrier to entry for independent or outside judicial candidates who cannot afford to run against a state-backed incumbent.
• Limiting Consumer (Voter) Choice: A business cartel forces consumers to buy from them at an inflated price because there are no alternatives. A political cartel forces voters to accept a pre-selected candidate because the mechanisms of choice—like an open primary or a fair election—have been intentionally dismantled or bypassed.
The "Cartel Party" Theory
In political science, the Cartel Party Thesis (introduced by scholars Richard Katz and Peter Mair) argues that modern political parties increasingly operate like cartels. Instead of serving as a bridge between the citizens and the government, parties use the resources and loopholes of the state to protect themselves from outsiders, ensure their own survival, and share power among a small group of elites.
[1] https://journals.law.harvard.edu
[2] https://www.brennancenter.org
[3] https://www.youtube.com
[4] https://www.cato.org
[5] https://www.mystateline.com
[6] https://theconversation.com
[7] https://www.floridabar.org
[8] https://boltsmag.org
[9] https://thecurrentga.org
[10] https://www.law.georgetown.edu
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