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Judicial selection in the states

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Methods of judicial selection
Judicialselectionlogo.jpg
Commission selection, political appointment
Gubernatorial appointment
Legislative election
Partisan elections
Non-partisan elections
Retention election

Methods of judicial selection vary substantially across the United States.[1] There are five main methods used to select state judges, though each state has a unique set of guidelines governing their method(s) of choice:

  • 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.
  • Commission-selection, political 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 continue serving.[2]

For as long as the judiciary has existed, advocates of these methods have disagreed about the best way to select judges that are both independent and accountable. See the Debate section below for an outline of supportive/critical arguments.

As seen in the Details by state section, states may apply more than one of the five methods across different levels of courts. For example, appellate court judges in the state of New York are chosen by commission-selection, political appointment, but the state’s trial court judges are chosen 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.[1][2]

Other states may put a unique spin on their method of selection. The commission-selection, political 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.[1]


Overview

Appellate state court selection in the United States, by specific selection method[1]
WashingtonOregonCaliforniaAlaskaIdahoNevadaMontanaWyomingUtahArizonaColoradoNew MexicoNorth DakotaSouth DakotaNebraskaKansasOklahomaTexasMinnesotaIowaMissouriArkansasLouisianaWisconsinIllinoisMississippiMichiganMichiganIndianaOhioKentuckyTennesseeAlabamaNew YorkPennsylvaniaWest VirginiaVirginiaNorth CarolinaGeorgiaSouth CarolinaFloridaMaineVermontD.C.Rhode IslandVermontNew HampshireNew HampshireMassachusettsMassachusettsNew JerseyNew JerseyConnecticutDelawareMarylandHawaiiPartisan election of judgesNon-partisan election of judgesAppointed by governorAppointed by commissionLegislative election of judgesAppointed by US PresidentSupreme court selection map.png
Appellate state court selection in the United States, by general selection method[1]
WashingtonOregonCaliforniaAlaskaIdahoNevadaMontanaWyomingUtahArizonaColoradoNew MexicoNorth DakotaSouth DakotaNebraskaKansasOklahomaTexasMinnesotaIowaMissouriArkansasLouisianaWisconsinIllinoisMississippiMichiganMichiganIndianaOhioKentuckyTennesseeAlabamaNew YorkPennsylvaniaWest VirginiaVirginiaNorth CarolinaGeorgiaSouth CarolinaFloridaMaineVermontD.C.Rhode IslandVermontNew HampshireNew HampshireMassachusettsMassachusettsNew JerseyNew JerseyConnecticutDelawareMarylandHawaiiAppellate court selection map colored2.png
State courts and their selection methods across the U.S., including the District of Columbia[1]
Note: Municipal-level courts are not included in this count. Ballotpedia covers an additional 45 municipal courts, most of which use methods that vary by municipality.
Method Supreme Court (of 53) Courts of Appeal (of 45) Trial Courts (of 147)
Partisan elections (PE) 8  8 42
Non-partisan elections (NPE) 15 13 31
Legislative elections (LE) 2 2 5
Gubernatorial appointment of judges (GAJ) 4 3 6
Commission-selection, political appointment (CS) 24 18 46
Combination or other 0 1* 17**
*Judges of the North Dakota Court of Appeals are appointed on an as-needed basis by the supreme court justices.[1]
**Most courts that use combination/alternative methods (for example, mayoral appointment) are local level courts. These courts are often governed by selection guidelines that are unique to their specific region.[1]

pChart

pChart

The tables above and at right illustrate the current shape of judicial selection across the country's state courts. The following conclusions can be drawn from the data:

  • The commission-selection, political appointment method is the most widely used selection system, applied in 88 types of courts across 23 states.
    • This method is used by the largest number of courts. However, at the trial court level a larger number of states use nonpartisan elections as their primary method, as seen in the bar graph at right.
    • Proportionately, this method is more popular in appellate courts than it is in trial courts.
  • Legislative appointments have been largely discontinued, with only two states (West Virginia and South Carolina) using them. Gubernatorial appointments (without help from a nominating commission) are also less commonly used.
  • Slight geographical trends can be spotted.
    • Partisan elections are most widely used in southern states.
    • Nonpartisan elections are most widely used in northwestern states.
    • Gubernatorial appointments are most widely used in northeastern states.
    • The commission-selection, political appointment method is most widely used in the nation's central states.
  • Overall, slightly more states use appointive methods than elective methods.[1]

Details by state

Key
PE Partisan election of judges
NPE Non-partisan election of judges
LE Legislative election of judges
GAJ Gubernatorial appointment of judges
CS Commission-selection, political appointment method

In the state tables below, the abbreviations at right are used as shorthand for each selection method.

States using one method at a particular court level do not necessarily use the same method across all other courts. The biggest differences are found between appellate and trial courts, but even some courts of the same level may vary from one another according to population or local initiative. For example, the judges of the Arizona Superior Courts are mostly chosen by election, but in regions with populations of 250,000 or more they are chosen by merit selection.[1]

Find your state in the alphabetical list below to learn which selection method is primarily used by each individual court. For more detailed information, click the name of the state.

States AL-FL

Alabama

State Supreme Court Courts of Appeal Circuit Court District Court
Flag of Alabama.svg Alabama PE PE PE PE

Alaska

State Supreme Court Courts of Appeal Superior Court District Court
Flag of Alaska.svg Alaska CS CS CS CS

Arizona

State Supreme Court Courts of Appeal Superior Court Justices of the Peace
Flag of Arizona.svg Arizona CS CS CS or NPE PE

Arkansas

State Supreme Court Courts of Appeal Circuit Court District Court
Flag of Arkansas.svg Arkansas NPE NPE NPE NPE

California

State Supreme Court Courts of Appeal Superior Court  
Flag of California.svg California GAJ GAJ NPE

Colorado

State Supreme Court Court of Appeals District Court County Courts  
Flag of Colorado.svg Colorado CS CS CS CS

Connecticut

State Supreme Court Court of Appeals Superior Court Probate Court  
Flag of Connecticut.svg Connecticut CS CS CS PE

Delaware

State Supreme Court Superior Court Court of Chancery Family Court Court of Common Pleas
Flag of Delaware.svg Delaware CS CS CS CS

CS

Florida

State Supreme Court District Courts of Appeal Circuit Court County Courts
Flag of Florida.svg Florida CS CS NPE NPE


History

Timeline

Judges have been selected by a variety of methods in an evolutionary process spanning four distinct phases: (1) legislative or modified executive appointment in the period immediately after the Revolutionary War, (2) partisan elections during the Jacksonian democracy of the 1830s, (3) nonpartisan elections as a result of the Progressive Era, and (4) merit selection after 1940.[3]

—Associate Dean Michael W. Bowers and Associate Professor Larry D. Strate of the University of Nevada[4]

The two timelines below illustrate historical trends in judicial selection across the U.S. The first displays changes in the number of states using the various methods over time, and the second displays changes in the percentage of states using the methods.


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Though both timelines are useful for understanding the history of judicial selection, the second may be a more useful presentation of the data. Looking only at Table 1, a person might think that legislative elections and gubernatorial appointments have maintained a consistent—albeit low—popularity level since the founding of the nation. This is not the case. As better seen in Table 2, legislative elections and gubernatorial appointments were overwhelmingly popular when the nation began; in fact, they were the only method of judicial selection used. Though a total of only 10 states utilized legislative elections and gubernatorial appointments in 1880, those states made up 100 percent of the nation. Today, a total of six states select judges by these methods, but they comprise only 12 percent of states in the nation.


Background

The United States has always struggled to agree on the best way to create a fair and impartial judicial branch. Choosing an optimal judicial selection method is uniquely challenging, because the judicial branch is expected to impartially apply the law without regard for politics or other considerations—being in this way independent—but also be responsible for the quality of their decision-making—being in this way accountable.[5]

Founders like Hamilton strongly favored judicial independence because of the conflict they saw in England between judges and the king. They also believed judicial independence was needed based on the colonial experience where governors often appointed friends to the bench no matter the person’s qualifications.[6][3]

—Associate Professor Matthew J. Streb of Northern Illinois University

Before the mid-1800s, nearly all states admitted to the Union selected their judges by gubernatorial appointment or legislative elections. Then in 1832, Mississippi became the first state to implement judicial elections.

Keeping independence and accountability in mind, these founders established a system whereby the President would appoint federal judges with U.S. Senate consent. Before the mid-1800s, nearly all states admitted to the Union selected their judges by this method of gubernatorial appointment with legislative confirmation as well, though some opted to select judges by legislative vote alone.[7] Then in 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a rapid shift occurred as state after state adopted the new method. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that has entered since provided for the election of some—if not all—of its judges.[6]

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 touted the importance of the "common man's" voice.[6]

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 spearheaded a push to restore "the traditional respect for the bench," which they believed had been lost.[6]

One popular reform method was the non-partisan election of judges, first implemented by Illinois' Cook County 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.[6]

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.
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.[6][3]

—Associate Professor Matthew J. Streb of Northern Illinois University

By 1927, twelve states selected judges in non-partisan elections. Many still took issue with the process, however, pointing out that as long as judges had to campaign for office, politics would play a role. Others questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, the assumption being that party affiliation communicates a candidate's values in an easy shorthand. For these reasons, three states who had experimented with nonpartisan elections switched back to partisan ones by 1927.[6]

Logo of the American Judicature Society, which was founded in 1913 and promoted the use of retention elections.

Out of these concerns arose a third kind of election, the retention election, purported by the American Judicature Society to encapsulate the positive aspects of each selection system. In another attempt to balance independence and accountability, retention elections were meant to work within the commission-selection, political 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 commission-selection, political appointment method as we know it today, and since then over thirty states have followed suit, using some form of retention elections at some level of their judiciary.[6][8] Retention elections have not escaped criticism, however, as money and mean-spiritedness can still play a role.[6]

The debate continues between supporters of partisan elections, non-partisan elections and the commission-selection, political appointment method; meanwhile, the practice of selecting judges through legislative elections has been largely discontinued.[8]

Debate

[edit]

Below is a concise summary of arguments for and against each method of judicial selection. Note that many of the arguments overlap, sometimes in surprising ways.

Partisan elections

See also: Partisan election of judges

Support

  • 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.[5][9]

Criticism

  • 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.[10]

Nonpartisan elections

See also: Nonpartisan election of judges

Popular arguments for and against nonpartisan judicial elections come in two flavors: those comparing nonpartisan elections to partisan ones and those comparing nonpartisan elections to non-elective methods.

Compared to partisan elections

Support

  • 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.*[5][10]

Criticism

  • 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.[5][11]

*Note that these arguments are actually very similar. Both claim that the everyday issues that matter on the bench are lost in the campaigning process, whether to hot button political issues at large or to isolated judicial rulings.

Compared to non-elective methods

Support

  • Elections give the people a direct voice in selecting judges and holding them accountable.[5]

Criticism

  • Where there is campaigning, whether partisan or nonpartisan, there are special interest groups hoping to "buy a vote."[12]

Legislative elections

See also: Legislative election of judges

Support

  • Legislative elections were designed to prevent any one authority figure from having too much power.[6]

Criticism

  • 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.[13][14]

Gubernatorial appointment

See also: Gubernatorial appointment of judges

Support

  • 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."

Criticism

  • Voters should be given a more direct voice in selecting judges and holding them accountable.[15]

Commission-selection, political appointment ("merit selection")

See also: Commission-selection, political appointment

Support

  • 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.[12][10]

Criticism

  • 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.[16][17][18]

2008 debate hosted by the Federalist Society

On March 7, 2008, the Federalist Society's Student Division hosted a debate at the Annual Student Symposium in Ann Arbor, Michigan.

The debate, which was recorded and uploaded to YouTube, features arguments from Tom Phillips (former chief justice of the Texas Supreme Court) and Clifford Taylor (former chief justice of the Michigan Supreme Court). It was moderated by Leonard A. Leo, who was serving as executive vice president of the Federalist Society at the time.[19]

Fitzpatrick study

Professor Brian Fitzpatrick of Vanderbilt University criticized the commission-selection, political appointment method in the Summer 2009 edition of the Missouri Law Review. He argued that the plan has resulted in the nomination of more left-leaning judges, noting that,

Of the fifty-four nominees in Missouri since 1995 who made any campaign contributions, 87% gave more to Democrats than Republicans, and only 13% gave more to Republicans than Democrats. Over the same time period, Democratic candidates in Missouri only received roughly 50% of the general election votes in state and federal House races.

[3]

—Professor Brian T. Fitzpatrick of Vanderbilt University [16]

Shepherd study

Merit selection's alleged ability to shrink the role of money in judicial election campaigns is touted as a major selling point. A 2013 study by the American Constitution Society titled "Justice At Risk: An empirical analysis of campaign contributions and judicial decision" examined the effects of campaign contributions on judicial behavior.[12]

In the report's introduction, former Alabama Supreme Court Chief Justice Sue Bell Cobb commented in favor of merit selection,

Having worn a judicial robe for a few months shy of thirty years, having run and won five times in partisan elections, having been involved in the most expensive appellate court race in the nation in 2006, I am sincerely concerned about judicial elections, the obscene amount of money which has flooded into campaigns, and the damage that has been done to the image of our beloved judicial system. This politicization of the courts puts justice at risk.

[3]

Sue Bell Cobb, former Chief Justice of the Alabama Supreme Court

Shepherd's report states that voters and judges alike already suspect that campaign contributions influence judges' decisions. Seventy-six percent of voters and forty-six percent of judges believe that judicial campaign contributions by special interest groups have at least some effect on judges' rulings. Shepherd and the American Constitution Society sought to explore this suspicion in an "objective and non-partisan empirical study."[12]

Independent researchers analyzed over 2,345 business-related supreme court published opinions from 2010 to 2012, merging the dataset with over 175,000 campaign contribution records that occurred over that period. Information was also collected on the characteristics of individual justices, including ideology.[12]

The findings were reported as follows:

  • A significant relationship exists between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.
  • The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.
  • A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
  • The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.
  • There is a stronger relationship between business contributions and justices’ voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party.

[3]

—Associate Professor Joanna Shepherd of Emory University

Canes-Wrone and Clark study

In an article for the Wisconsin Law Review titled "Judicial Independence and Nonpartisan Elections," Professor Brandice Canes-Wrone of Princeton University and Assistant Professor Tom S. Clark of Emory University argued for partisan elections over nonpartisan ones. They claimed that in absence of campaigning by party affiliation, issue-based campaigning becomes the norm, and, a judge's isolated rulings on specific issues—often abortion, gay marriage, death penalty and tax policy—are publicized to the exclusion of less hot-button issues.

In partisan systems, voters know a candidate’s partisan affiliation, which they can presume will correlate at some level with a judge’s philosophy and ideological leanings. Nonpartisan elections, by comparison, provide no such cue. As a consequence, in nonpartisan systems interest groups and others can more easily shape voters’ perceptions of a judge by publicizing isolated rulings.[11][3]

—Professor Brandice Canes-Wrone of Princeton University and Assistant Professor Tom S. Clark of Emory University

Examining nearly 600 state supreme court rulings on abortion-related cases from 1980 to 2006, Canes-Wrone and Clark concluded that "public opinion about abortion policy affects judicial decisions in nonpartisan systems, while no such relationship exists in states with partisan elections."[11]

Recent news

This section displays the most recent stories in a Google news search for the terms "Judicial selection courts."

All stories may not be relevant to this page due to the nature of Google's news search engine.

Judicial selection in the states - Google News Feed

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See also

External links

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 American Judicature Society, "Methods of Judicial Selection," archived February 2, 2015
  2. 2.0 2.1 American Bar Association, "Judicial Selection: The Process of Choosing Judges," June 2008
  3. 3.0 3.1 3.2 3.3 3.4 3.5 3.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  4. Nevada Historical Society, "Nevada Historical Society Quarterly," Winter 1993
  5. 5.0 5.1 5.2 5.3 5.4 The Federalist Society, "The Case for Partisan Judicial Elections," January 1, 2003
  6. 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
  7. American Judicature Society, "History of Reform Efforts," archived October 2, 2014
  8. 8.0 8.1 American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
  9. Sedgwick Law, "Tort Reform," July 2003
  10. 10.0 10.1 10.2 Center for American Progress, "Partisan Judicial Elections and the Distorting Influence of Campaign Cash," October 25, 2012
  11. 11.0 11.1 11.2 Wisconsin Law Review, "Judicial independence and nonpartisan elections," March 14, 2009
  12. 12.0 12.1 12.2 12.3 12.4 American Constitution Society, "Justice At Risk: An empirical analysis of campaign contributions and judicial decision - Key Findings," June 2013, accessed December 9, 2013
  13. American Judicature Society, "Judicial Selection in the States: South Carolina; Overview," archived January 11, 2014
  14. University of Richmond Law Review, "Reconsidering Virginia Judicial Selection," November 2008
  15. The Advocate, "Justice cautions on appointing judges," April 9, 2008
  16. 16.0 16.1 Missouri Law Review, "The Politics of Merit Selection, Vol. 74, Issue 3, Article 13," accessed December 9, 2013
  17. Missouri Law Review, Vol. 74, Issue 3, "The Missouri Plan in National Perspective," accessed December 9, 2013
  18. The Advocate, "Justice cautions on appointing judges," April 9, 2008
  19. YouTube, "The Merits of Electing Our Judges 3-7-08," April 19, 2011