Judicial selection in the states

Methods of judicial selection
Election methods
Partisan election
Nonpartisan election
Michigan method
Retention election
Assisted appointment
Assisted appointment
Bar-controlled commission
Governor-controlled commission
Hybrid commission
Direct appointment
Court appointment
Gubernatorial appointment
Legislative election
Municipal government selection

Methods of judicial selection vary substantially across the United States. Though each state has a unique set of guidelines governing how they fill their state and local judiciaries, there are five main methods:

• Partisan elections: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
• Nonpartisan elections: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
• Legislative elections: Judges are selected by the state legislature.
• Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
• Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list. After serving an initial term, the judge must be confirmed by the people in a yes-no retention election to remain on the court. At the state supreme court level, this selection method is further divided into three types. See below to learn more.

States may apply more than one of the five methods across different levels of courts. For example, a state may choose its appellate court judges by assisted appointment while choosing its trial court judges in partisan elections. Some states may even select judges of the same court level differently depending on the population of an area or local opinion. States may also modify any of the systems above in their own way. The assisted appointment method, in particular, comes in a variety of forms. For instance, some states require the governor to choose from the commission's list of nominees, while in other states the list is only a suggestion.

Selection methods by state

See also: Length of terms of state supreme court justices

Click a state on the map below to read more about how judicial selection works in that state.

Choose your state...AlabamaAlaskaArizonaArkansasCaliforniaColoradoConnecticutDelawareFloridaGeorgiaHawaiiIdahoIllinoisIndianaIowaKansasKentuckyLouisianaMaineMarylandMassachusettsMichiganMinnesotaMississippiMissouriMontanaNebraskaNevadaNew HampshireNew JerseyNew MexicoNew YorkNorth CarolinaNorth DakotaOhioOklahomaOregonPennsylvaniaRhode IslandSouth CarolinaSouth DakotaTennesseeTexasUtahVermontVirginiaWashingtonWashington, D.C.West VirginiaWisconsinWyoming

http://ballotpedia.org/Judicial_selection_in_STATE

State supreme courts

At the state supreme court level, the assisted appointment method is further divided into the following three types, based on the makeup of the judicial nominating commissions. Those types are:

• Governor-controlled commission - The governor is either responsible for appointing a majority of the members of the nominating commission or may decline to appoint a candidate from a list provided by the nominating commission.
• Bar-controlled commission - The state Bar Association is responsible for appointing a majority of the members of the nominating commission.
• Hybrid commission - There is no majority of members chosen by either the governor or the state Bar Association. The membership of these commissions is determined by different rules in each state.

The map below highlights selection methods in state supreme courts across the country.

The chart below details selection methods in state supreme courts across the country.

See also: Length of terms of state supreme court justices

Judicial selection methods in state supreme courts
Partisan election	Nonpartisan election	Gubernatorial appointment	Legislative election	Michigan method	Assisted appointment
Alabama Illinois Louisiana New Mexico North Carolina Ohio Pennsylvania Texas (two courts)	Arkansas Georgia Idaho Kentucky Minnesota Mississippi Montana Nevada North Dakota Oregon Washington West Virginia Wisconsin	California Maine Massachusetts New Hampshire New Jersey	South Carolina Virginia	Michigan	Alaska Arizona Colorado Connecticut Delaware District of Columbia Florida Hawaii Indiana Iowa Kansas Maryland Missouri Nebraska New York Oklahoma (two courts) Rhode Island South Dakota Tennessee Utah Vermont Wyoming
Total: 8 states	Total: 13 states	Total: 5 states	Total: 2 states	Total: 1 state	Total: 21 states & D.C.

Intermediate appellate and general jurisdiction courts

The chart below details selection methods at the intermediate appellate and general jurisdiction court levels across the country.

Judicial selection methods in intermediate appellate and general jurisdiction courts
Partisan election	Nonpartisan election	Gubernatorial appointment	Legislative election	Assisted appointment	Combination of assisted appointment and other methods
Alabama Illinois Louisiana New Mexico North Carolina Ohio (intermediate appellate) Pennsylvania Tennessee (general jurisdiction) Texas	Arkansas Georgia Idaho Kentucky Michigan Minnesota Mississippi Montana Nevada North Dakota Ohio (trial and limited jurisdiction) Oregon Tennessee (general jurisdiction) Washington West Virginia Wisconsin	California Maine New Hampshire New Jersey	South Carolina Virginia	Alaska Colorado Connecticut Delaware District of Columbia Hawaii Iowa Maryland Massachusetts Nebraska Rhode Island Tennessee (intermediate appellate) Utah Vermont Wyoming	Arizona Florida Indiana Kansas Missouri New York North Dakota Oklahoma South Dakota
Total: 9 states	Total: 16 states	Total: 4 states	Total: 2 states	Total: 14 states & D.C.	Total: 9 states

Arguments for and against judicial selection methods

The table below highlights arguments in support and opposition of the judicial methods discussed on this page. The points in the table were compiled by Ballotpedia staff from statements made by groups active in judicial politics. Know of something else we could include? Click here to let us know.

Arguments for and against judicial selection methods
Method	Support	Opposition
Partisan elections	Elections give the people a direct voice in selecting judges and holding them accountable. Party affiliation efficiently communicates candidates' values and ideologies. Partisanship is unavoidable in any selection system. If it doesn't surface in outright political party support, it will surface in other ways.	Partisan elections give special interest groups a foothold to manipulate the judiciary. Voters do not actually understand how partisanship manifests itself in everyday decision making; they often instead base their decisions on hot button political issues.
Nonpartisan elections	Nonpartisan elections do not attract as much funding as partisan elections, especially from special interest groups that may wish to sway justice in their favor. Voters do not actually understand how partisanship manifests itself in everyday decision making; in partisan elections, they often base their decisions on hot button political issues. Compared to non-elective methods, elections give the people a direct voice in selecting judges and holding them accountable.	In absence of party affiliation, issue-based campaigning becomes the norm, making isolated rulings on specific issues—often abortion, gay marriage and the death penalty—the centerpiece of judicial campaigns. Partisanship is unavoidable in any selection system. If it doesn't surface in outright political party support, it will surface in other ways. Where there is campaigning, whether partisan or nonpartisan, there are special interest groups hoping to "buy a vote."
Legislative elections	Legislative elections were designed to prevent any one authority figure from having too much power.	Legislative elections do not function well when the legislature is politically polarized. Legislative elections promote political "inbreeding" and can potentially create a judiciary primarily made up of past legislators.
Gubernatorial appointment of judges	Gubernatorial appointments protect the independence of the judiciary, eliminating the need for political campaigns and insulating the judiciary from special interest groups that may wish to "buy a vote."	Voters should be given a more direct voice in selecting judges and holding them accountable.
Assisted appointment	Allegedly, merit selection results in more qualified judges, since many voters may not understand how to evaluate a judge's qualifications. Merit selection protects judicial independence by insulating the judiciary from the influence of partisan politics. Though judges may still campaign for retention, these campaigns do not attract as much funding as contested elections. Citizens' confidence in the judiciary is shaken by the perception that campaign contributions influence decision-making.	Voters should be given a more direct voice in choosing judges. Merit selection is still a political process, since commission members are often chosen by the governor and/or bar association members. Merit selection systems should be more transparent, especially in states where nomination meetings are closed to the public. Merit selection systems are built upon the incorrect notion that an elected judiciary is more susceptible to political meddling.

Brief history of judicial selection

At the founding of the United States, all states selected judges through either gubernatorial or legislative appointments. In 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a national shift occurred as states joined them. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that achieved statehood after the Civil War provided for the election of some—if not all—of its judges.

Scholars attribute the move toward judicial elections to a variety of factors, including:

• concern over an independent judiciary, especially after Marbury v. Madison established the judiciary's power as equal to that of the executive and legislative branches,
• imitation by the states,
• belief that judges at a local level should be accountable and responsive to their communities, and
• the growing popularity of Jacksonian ideals, which elevated the voice of the average American.

Initially, all judicial elections were partisan. But as time went on, public trust in elected judiciaries wavered, and citizens who viewed the courts as overrun by machine politics began looking for alternative methods. Groups such as the Progressives, the American Bar Association, and the American Judicature Society led an effort to restore what they called "the traditional respect for the bench," which they said had been lost.

One other popular selection method was the nonpartisan election of judges, first implemented by Cook County, Illinois in 1873. By not including party affiliation on the ballot, supporters argued, divisive partisan interests would find no footing in state and local selection processes.

“	Since judges are supposed to be “above politics,” this reform was particularly popular regarding judicial selection. Nonpartisan judicial elections were perceived as a way to clean up corruption and cronyism in the judicial selection process while still keeping judges accountable to the people.	”
—Associate Professor Matthew J. Streb of Northern Illinois University

Though states continued to experiment with selection methods throughout the next century, the methods of legislative elections and direct gubernatorial appointments did not see a return. No state that achieved statehood after 1847 had an original constitution calling for these methods except Hawaii, whose judges were initially chosen by gubernatorial appointment with senate consent.

By 1927, 12 states selected judges in nonpartisan elections. Critics claimed that as long as judges had to campaign for office, politics would still play a role. Other critics questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, offering the assumption being that party affiliation communicates a candidate's values in an easy shorthand. Three states that had experimented with nonpartisan elections switched back to partisan ones by 1927.

Out of these concerns arose a third kind of election, the retention election, which the American Judicature Society argued encapsulates the positive aspects of each selection system. Retention elections were meant to work within the assisted appointment method to give judges relief from campaigning against an opponent while also giving voters the power to remove those judges from office if necessary. In 1940, Missouri became the first state to adopt the assisted appointment method as we know it today, and since then more than thirty states followed suit, using some form of retention elections at some level of their judiciary.

Vacancy procedures

See also: How vacancies are filled in state supreme courts

The process for filling vacancies on state supreme courts varies among states. In most states, the governor appointments a replacement justice, either outright or with assistance from a nominating commission. The most common reasons for a vacancy on a state supreme court include reaching the mandatory retirement age, retiring before the end of a term, death, or appointment to another office.

The map below highlights how vacancies are filled in state supreme courts across the country.

See also

State courts	Appointment methods	Election methods
State supreme courts Intermediate appellate courts Trial courts	Assisted appointment Court appointment Gubernatorial appointment Legislative election Municipal government selection	Partisan election Nonpartisan election Michigan method

External links

Suggest a link

• National Center for State Courts
• American Judicature Society - Methods of Judicial Selection