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Legislative election of judges
| 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 |
The legislative election method of judicial selection is a process by which state legislators choose judges to serve on a court. This method is unique among selection types in that neither the governor (via appointment powers) nor the public (via direct elections) has a role in this selection process.
As of April 2025, two states—Virginia and South Carolina—used this selection method for courts of last resort, appellate courts, and general jurisdiction trial courts.
Other methods of judicial selection include: partisan and nonpartisan elections, the Michigan method, assisted appointment, court appointment, municipal government selection, and gubernatorial appointment. To read more about how these selection methods are used across the country, click here.
How legislative election works
In both states that use this selection method, judges are elected by the state legislature following their review by a nominating commission or committee. The specifics of that process vary in those states. Below are descriptions of how legislative elections worked in those two states, as of 2025.
- South Carolina: The South Carolina Judicial Merit Selection Commission screens and selects candidates for judgeships before submitting a list of three names to the South Carolina General Assembly for consideration. The joint General Assembly then votes on the candidates, either choosing one of the three recommendations by a majority vote or rejecting the entire slate. If the General Assembly rejects the full slate, a new slate is selected by the commission and submitted to the General Assembly.[1][2]
- Virginia: The Courts of Justice Committee in each chamber accepts names of candidates from members of the Virginia General Assembly. The committees determine whether each nominee is qualified for the judgeship during public hearings. Those committees submit a report listing qualified candidates to each chamber of the General Assembly. Each chamber votes separately and the candidate receiving the most votes in each chamber is elected to the judgeship.[3]
States using this method
State supreme courts
At the state supreme court level, the following states use this selection method: South Carolina and Virginia.
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.
| Judicial selection methods in state supreme courts | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Michigan method | Assisted appointment | |
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| 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
In selecting judges for the intermediate appellate and general jurisdiction courts, two states use legislative election. The chart below details selection methods at these court levels across the country.
| Judicial selection methods in intermediate appellate and general jurisdiction courts[4] | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Assisted appointment | Combination of assisted appointment and other methods | |
|
|
|
|
|
| |
| Total: 9 states | Total: 16 states | Total: 4 states | Total: 2 states | Total: 14 states & D.C. | Total: 9 states | |
Arguments in support of legislative election
In a commentary written on the Virginia Constitution published in 1974, University of Virginia School of Law professor A.E. Dick Howard wrote:[5]
| “ | Methods of selecting judges in America vary widely. The Commission on Constitutional Revision considered alternative plans, such as the life tenure of the federal courts coupled with executive appointment and Senate confirmation and variants of the much-discussed Missouri plan, involving an initial selection for a term of years followed by a popular election in which the judge runs on his judicial record. The Commission saw no advantage to those plans over the method of judicial selection in Virginia.[6] | ” |
In a report released in January 2021 by Palmetto Promise titled Fast Facts: A Review of South Carolina’s Judicial Selection Process, Oran Smith wrote:[7]
| “ | The South Carolina method of selecting the majority of our judges has its advantages. Being subject to the combined decisions of 170 elected individuals seems like a good hybrid between one person making the decision and three million people, most with no legal background, making the choice.[6] | ” |
Arguments in opposition to legislative election
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[8]
| “ | Although proponents of the legislative appointment method assert that members of the legislature may be better equipped to select judges and may be more familiar with the candidates than the people, this conclusion has not been supported by empirical evidence. As this is now the least used method of judicial selection, it could probably be concluded that for most states, the flaws in this method are seen to outweigh any perceived advantages. Obvious problems with legislative appointments include the danger of partisan politics, the possibility of cronyism, and the limitations imposed by the fact that it is likely that there will be only a narrow field of candidates known to the legislators.[6] | ” |
In a brief published in 2017 by the Brennan Center for Justice, author Douglas Keith wrote:[9]
| “ | North Carolina’s legislators may hope to shield judges from undue outside influence and conflicts of interest, but the limited evidence that exists suggests that a legislative appointment system is unlikely to alleviate these problems. In fact, legislative appointments can introduce significant new complications: they can enable favoritism towards legislators and those close to them, breed corruption, produce and suffer from governmental dysfunction, and undermine judicial independence – all while continuing to provide a path for special interests to unduly influence nominations.[6] | ” |
Judicial selection methods
Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:
Election
- Partisan election: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
- Nonpartisan election: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
- Michigan method: State supreme court justices are selected through nonpartisan elections preceded by either partisan primaries or conventions.
- Retention election: A periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. Judges are not selected for initial terms in office using this election method.
Assisted appointment
- 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.[10] At the state supreme court level, this method is further divided into the following three types:
- Bar-controlled commission: Members of the state Bar Association are responsible for electing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
- Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
- Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control.
Direct appointment
- Court appointment: Judges are selected by judges in the state judiciary.
- Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
- Legislative election: Judges are selected by the state legislature.
- Municipal government selection: Judges are selected by the governing body of their municipality.
Brief history of judicial selection
At the founding of the United States, all states selected judges through either gubernatorial or legislative appointments.[11] 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.[12][13]
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.[13]
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.[13]
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.[13]
| “ | 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.[13][6] | ” |
| —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.[12]
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.[13]
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.[13][14]
See also
External links
Footnotes
- ↑ Albany Law Review, "The Untouchables: The Impact of South Carolina's New Judicial Selection System on the South Carolina Supreme Court, 1997-2003," June 30, 2004
- ↑ South Carolina General Assembly, "How Judges Are Selected in South Carolina," January 11, 2010
- ↑ Virginia Division of Legislative Services, "Judicial Selection Overview," accessed June 14, 2021
- ↑ States may use different selection methods for different courts in their state; in such cases, a state is listed for each selection method use for intermediate appellate and general jurisdiction courts.
- ↑ Howard, A.E. D. (1974) "Commentaries on the Constitution of Virginia". Charlottesville, Virginia: University Press of Virginia. (page 742)
- ↑ 6.0 6.1 6.2 6.3 6.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Palmetto Promise, "Fast Facts: A Review of South Carolina’s Judicial Selection Process," January 8, 2021
- ↑ The Federalist Society, "The Case for Judicial Appointments," January 1, 2003
- ↑ Brennan Center for Justice, "Legislative Appointments for Judges: Lessons from South Carolina, Virginia, and Rhode Island," September 29, 2017
- ↑ American Bar Association, "Judicial Selection: The Process of Choosing Judges," accessed August 10, 2021
- ↑ Brennan Center for Justice, "Rethinking Judicial Selection in State Courts," accessed June 7, 2021
- ↑ 12.0 12.1 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
- ↑ 13.0 13.1 13.2 13.3 13.4 13.5 13.6 DeGruyter Brill, "The Study of Judicial Elections," accessed April 21, 2025
- ↑ American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
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