Significant Figures in Judicial Selection

State judges are selected in a dizzying assortment of methods. Which method is used depends on the state, the level of court, and the type of vacancy being filled. For example, when a vacancy opens up in the middle of a judge’s term, in most states, the governor makes an interim appointment to fill the seat. In contrast, in most states, when sitting judges seek another term, they must participate in some type of popular election. The Brennan Center, as part of Rethinking Judicial Selection, distilled the judicial selection landscape into some principal trends. These are the significant figures of judicial selection in the states.

I. What are the most common ways of selecting judges?

• Most states use elections as some part of their selection process – 39 states use some form of election at some level of court. Of the 38 states where elections are used to select judges to the high court:
  • In 16 states, judges are appointed by the governor and reselected in unopposed retention elections.
  • In 14 states, judges are selected in contested nonpartisan elections.
  • In 8 states, judges are selected in contested partisan elections, including New Mexico, which uses a hybrid system that includes partisan elections.
• Appointments are also a common aspect of judicial selection. At the high court level:
  • In 9 states and D.C., judges are appointed by the governor. Judges either serve for life terms or until they reach a mandatory retirement age in three of these states. In the other six, judges can be reappointed to additional terms by the governor or the legislature. In one state, Hawaii, the state’s judicial nominating commission determines whether to reappoint sitting justices, without a role for the governor or legislature. And in the District of Columbia, the president appoints judges to the D.C. Court of Appeals for 15 year terms, after which they may reapply for subsequent terms, up until the mandatory retirement age of 74.
  • In another 16 states, judges are initially appointed by the governor and reselected in unopposed retention elections. In addition, in New Mexico, judges are initially appointed by the governor, must then compete in a partisan election during the next general election, and then are reselected in unopposed retention elections.
  • In a total of 26 states and D.C., the governor (or the President in the case of D.C.) appoints judges to their first term from a list of candidates provided by a nominating commission.
• Although most selection processes center around executive appointment or popular elections, 16 states and D.C. provide avenues for influence from the legislature or another body.
  • In 2 states, judges are appointed by the state legislature and in another 14 states the governor’s judicial nominee is subject to confirmation by the legislature or another body. The U.S. Senate confirms the president’s appointments to the D.C. Superior Court and the D.C. Court of Appeals.

II. What do judges do after serving their first term?

• In 3 states, judges of general jurisdiction do not ever face reselection, instead serving a single lengthy term.
  • In Rhode Island, judges are appointed by the governor to a life term with no age limit.
  • In Massachusetts and New Hampshire, the governor appoints judges to a single term lasting up to mandatory retirement at age 70.
• Retention elections are the most common reselection method in state high courts.
  • In 19 states, high court judges who finish a term may stand for additional terms in uncontested yes/no retention elections.

III. How does selection differ across different levels of courts?

• Contested elections are more commonly used to select judges to lower courts than to state high courts.
  • Nonpartisan elections are used to select judges to trial courts in 21 states, while only 14 states select high court judges this way.
  • Partisan elections are used in 11 states to select judges to state trial courts. Just eight states use partisan elections to select high court judges.
• Conversely, gubernatorial appointment is more commonly used to select judges to full terms at state high courts than at the trial level.
  • While 26 states and D.C. use executive branch appointment to fill initial terms on their high courts, just 20 states and D.C. do the same at the trial courts.

IV. Which states take unique approaches to judicial selection?

• Hawaii takes a novel approach to reappointing judges who are already on the bench.
  • Judges approaching the end of their term may apply to the state Judicial Selection Commission seeking reappointment for another term. The commission, which also serves as a judicial nominating commission, determines whether the incumbent judge is reappointed or not. Judges initially reach the bench through gubernatorial appointment.
• Contested elections are sometimes coupled with retention elections
  • In two states — Illinois and Pennsylvania — judges are selected to a first full term in contested partisan elections, but incumbent judges are reselected in unopposed retention elections. In New Mexico, judges are initially appointed by the governor from a list of candidates provided by a nominating commission. At the next general election, judges then must compete in a partisan election, and thereafter are reselected in unopposed retention elections.
• Supreme court elections can be district-based
  • In four states — Illinois, Kentucky, Louisiana, and Mississippi — high court judges are elected to represent different state circuits or districts.
• Special elected bodies can be responsible for confirming nominees
  • In Massachusetts and New Hampshire, the governor’s selection of a judge must be confirmed by a council elected specifically for that purpose, as opposed to the legislative confirmation process common in other states.
• Judicial selection can vary within a single state
  • Three states — Arizona, Kansas, and Missouri — select trial judges using different methods, depending on the district or county. 

V. What are nominating commissions? Where are they used?

• Judicial nominating commissions are independent bodies assembled to help with the judicial appointment process by vetting candidates for judicial vacancies and sending a list of qualified candidates to the appointing authority, typically the governor. Commission membership varies, but usually the governor appoints at least some members, and in some states the legislature and state bar also play a part in appointing commissioners.
• Nominating commissions are widely used and, in most states, the appointing authority, typically the governor, must choose from the list provided by the commission.
  • In 33 states and D.C., nominating commissions are used to help fill vacancies that open up on the high court.
  • The overwhelming majority of those state commissions — 27 of them and D.C. — issue binding recommendations.
  • In the 6 states where nominating commissions are nonbinding, the appointing authority receives a list of vetted candidates from the commission but is not required to appoint from it.

VI. What are interim vacancies? How do states fill them?

• Interim vacancies occur when a judge’s seat becomes open before the end of their term; for example, due to retirement.
• Almost all states — 48 of them — including most of the states that select high court judges in contested elections, rely on gubernatorial appointment to fill interim vacancies.
  • In all of the 22 states that select high court judges in contested elections, interim vacancies are filled in non-elective processes. In most of those — 20 states — the governor selects an interim judge to serve until a later election but, in the other 2 states, the state supreme court is responsible for the interim appointment.
  • Interim vacancies on the D.C. Court of Appeals are also filled by executive appointment; in that case the president makes the appointment.