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Analysis

Judicial Selection: Significant Figures

States utilize a great variety of methods to select judges. Here, the judicial selection landscape is distilled into some notable patterns.

  • Brennan Center for Justice
May 8, 2015

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 15 states, judges are selec­ted in contested nonpar­tisan elec­tions.
    • In 7 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, judges are appoin­ted by the governor. Judges serve life terms in three of these states. In the other six, judges can be reappoin­ted to addi­tional terms by the governor. In the District of Columbia the pres­id­ent appoints judges to the D.C. Court of Appeals.
    • 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 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 provide aven­ues for legis­lat­ive influ­ence.
    • 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 one or both state legis­lat­ive bodies. The federal Legis­lature confirms the pres­id­ent’s appoint­ments to 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 15 states select high court judges this way.
    • Partisan elec­tions are used in 11 states to select judges to state trial courts. Just seven 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 DC use gubernat­orial appoint­ment to fill initial terms on their high courts, just 20 states and DC 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 36 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 — 29 of them and D.C. — issue bind­ing recom­mend­a­tions.
    • In the 7 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 21 states that select high court judges in contested elec­tions, interim vacan­cies are filled in non-elect­ive processes. In most of those — 19 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.