Judicial Selection: Brennan Center Research

Judicial Selection

• Choosing State Judges: A Plan for Reform (2018) — The Brennan Center recommends that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission. Furthermore, to genuinely preserve judicial independence, all justices should serve a single, lengthy term. 

• The Politics of Judicial Elections, 2017–18 (2019) — Over the past two decades, the Brennan Center and the National Institute on Money in Politics have documented more than a half-billion dollars in spending in state supreme court elections in the Politics of Judicial Elections series. Our new analysis looks at the 2017–18 state supreme court election cycle. See previous reports here.

• Who Pays for Judicial Races? The Politics of Judicial Elections 2015–16 — Using data from every state supreme court election in the most recent 2015–16 cycle, the report is the only comprehensive analysis of these and other trends, and includes examples of what big spenders hope to achieve, the kinds of ads the fund, and the threats they pose to the appearance and reality of evenhanded justice. See previous reports here.

• Judicial Nominating Commissions (2019) — This report assesses who has influence on judicial nominating commissions today, both on paper and in practice, by examining the commissions’ members. The report shows key variations in the design of nominating commissions that have implications for who has power over, or a voice in, the commission’s process of recruiting, vetting, and recommending judicial applicants.

• Legislative Appointments for Judges: Lessons from South Carolina, Virginia, and Rhode Island (2017)— This analysis examines the history of legislative appointments for judges in the three states that used legislative appointments, and warns of common problems legislative appointments can pose to an impartial and independent judiciary.                                                                   

• Judicial Selection: A Look at California (2017) —  This analysis looks at California’s judicial appointment system, and finds that while this method is effective in California, it may not have sufficient built-in safeguards to successfully export the model to other jurisdictions.

• Appointed and Advantaged: How Interim Vacancies Shape State Courts (2017) — This analysis examines the long-term effects interim appointments have on the judiciary, particularly in states that use elections for subsequent terms on the bench.

• Judicial Selection for the 21st Century (2016) — This report examines the history of judicial selection in state courts, challenges to contemporary reform, and proposes values to consider in future reform efforts.

• Judicial Retention in Hawaii: A Case Study (2016) — This analysis looks at the use of nominating commissions for judicial retention, a system which is unique to Hawaii. It finds that many of its features help promote a nonpartisan and independent judiciary, but that it could be improved by increased transparency. 

• Rethinking Judicial Selection in State Courts (2016) — This analysis examines problems state courts face in selecting judges, offers a framework for considering the values judicial selection should promote, and proposes considerations that should inform potential reform efforts.

• How Judicial Elections Impact Criminal Cases (2015) — Pressures of upcoming re-election campaigns make judges more punitive toward defendants in criminal cases, according to a growing body of empirical research.

Judicial Diversity

• State Supreme Court Diversity (2019)— Amid growing recognition of disparities in America’s justice system, this report highlights a critical but under-scrutinized problem: the lack of racial, ethnic, and gender diversity on state supreme court benches across the United States. As a whole, state courts hear 95 percent of all cases filed in the United States. State supreme courts generally provide the final word in interpreting state law and set precedents that bind more than 23,000 lower state court judges.

• Resources for Aspiring Bankruptcy Judges (2019)— This page provides data on bankruptcy court diversity and resources regarding the process for reaching the bankruptcy bench.                   

• Building a Diverse Bench (2017) — This manual outlines best practices for promoting more diverse magistrate and bankruptcy court benches. 

• Diversity on the Bench: Not Just an American Problem (2017) — This analysis examines Canada’s recent changes in judicial selection. It examines reasons Canada’s judiciary, like that of the U.S., fails to reflect the diversity of its population.

• Building a Diverse Bench: A Guide for Judicial Nominating Commissioners (2016) — This new resource provides nominating commissioners with concrete guidance on the steps they can take to promote a more diverse bench.    

• Improving Judicial Diversity (2009) — This study examines how successful states with appointed judiciaries are at recruiting and appointing women and racial minorities to sit on the bench, aiming to provide an accurate picture of the diversity in state courts and a roadmap of how to improve diversity on the state bench.

Judicial Recusal

• Judicial Recusal Reform: Toward Independent Consideration of Disqualification (2016) — This report examines the rules currently governing judicial disqualification in state court systems, and provides recommendations for reform.

• Promoting Fair and Impartial Courts Through Recusal Reform (2011) — To assist state courts in responding to the need for recusal reform, the Brennan Center for Justice has collected model rules that provide a blueprint for state implementation.

• Fair Courts: Setting Recusal Standards (2008) — This paper focuses on how judges, courts, legislators, and litigants can maximize the due process protection that stronger recusal rules potentially afford, offering ten proposals to strengthen the fairness and legitimacy of state recusal systems.