The last blog post discussed the importance of having good judges in the system. The two basic methods used in the selection of judges in the United States are election and appointment. Elective methods may be either partisan or nonpartisan. In partisan elections, the judicial candidate is nominated by a party and runs with a party identification. In nonpartisan elections, the judicial candidate is generally nominated in a nonpartisan primary and runs in the general election without a party label. Appointment methods used in other states differ on where the responsibility rests for the important decisions; they are made either by the governor, the legislature or a judicial nominating commission. The method which uses the judicial nominating commission is generally referred to as merit selection or the Missouri plan. Most states use a combination of elected and appointed systems.
The president makes all federal judicial appointments with the advice and consent of the Senate. Additionally, significant roles are played in the selection process by the senator of the president’s party from the state in which the vacancy exists, the Justice Department and the American Bar Association.
The debate on whether elections or appointments lead to the best judges on the bench is ongoing. There are pros and cons to both avenues of judicial selection. Either way, there may be corruption and unfair play. The appointment of federal judiciary abides by the idea that judges generally should be insulated from the election and campaign processes, for purposes of keeping them focused on the law and court cases. Yet some worry that the appointment and confirmation of judges by elected officials is not sufficiently democratic.
Then again, elected judges may be more susceptible to catering to campaign funders and special interests, which would create a conflict or interest in their rulings. Electing judges forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Without any legitimate reason, voters may choose their candidates based on factors such as ballot position, ethnic surnames and who bought the most TV ads. Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire. Politics has infiltrated the judicial campaigns, making them high-stakes races, drawing in big money and increasingly negative advertising.
Here’s how judicial selection breaks down by state:
- New Hampshire
- New Jersey
- New York
- Rhode Island
- South Carolina
- South Dakota
- North Dakota
- North Carolina
- New Mexico
- West Virginia
Governor or Legislative Appointment: In 12 states, judges are appointed by the
governor or (in South Carolina and Virginia) the legislature. Gubernatorial appointments
usually require the consent of the upper house of the legislature or the participation of a special commission such as an executive council. In most of these states, judges serve a term (ranging from 6 to 14 years) and then may be reappointed in the same manner. In Massachusetts, New Hampshire, and Rhode Island, judges enjoy lifetime or near-lifetime tenure.
Merit Plan: In 16 states, judges are nominated by a nonpartisan commission, and then appointed by the governor. Judges serve a term and then are subject to a retention election, where they run alone, and voters can either approve another term or vote against them. Terms vary but on the whole are less than those in appointment states. A merit selection plan generally has three key elements: (1) a list of qualified candidates (usually three) developed by a nonpartisan judicial nominating commission made up of lawyers and non-lawyers; (2) appointment of the judge by the governor from the list developed by the nominating commission; (3) a short probation period for the judge followed by a retention election in which the judge has no opponent but must receive enough “yes” votes to be retained.
Nonpartisan Election: In 13 states, judges run for election. Their political
affiliations are not listed on the ballot, and so voters, unless specifically informed, do not know a candidate’s political party. These judges serve a term and then may run for
reelection. The terms range from 6 to 10 years.
Partisan Election: In 9 states, judges run for election as a member of a political
party. They serve a term in the range of 6 to 10 years for the most part and then may run for reelection.