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Rethinking Judicial Selection for the 21st Century

In recent decades, state judicial selection has become increasingly politicized, polarized, and dominated by special interests. This new Brennan Center initiative aims to spur conversation — and innovation — on ways to improve.

June 6, 2016

New York, NY – In recent decades, state judicial selection has become increasingly politicized, polarized, and dominated by special interests — and growing evidence suggests these dynamics impact who reaches the bench and how judges decide cases.

Today, the Brennan Center for Justice at NYU School of Law launched three major new resources for rethinking judicial selection:

“Each selection method arose at a different period in the nation’s history, responding to specific needs and concerns of the day,” writes John Kowal, the vice president for programs at the Brennan Center, in Judicial Selection for the 21st Century. “But they were all intended to ensure an appropriate balance of independence and accountability. Whether they still achieve that goal is a matter of debate.”

The Brennan Center has worked for nearly 20 years to promote a fair and independent judiciary, and its experts say current selection methods have led to a host of problems, from the outsized influence of money in judicial elections, which leads to conflicts of interest that consciously and unconsciously permeate decision-making, to a lack of diversity on the bench. Research shows that judges facing re-election are likely to dole out harsher punishments. And, getting considered for the bench in the first place is a challenge for many minority candidates, who face inadequate recruitment pipelines, fundraising difficulties, and bias.

It’s time for a rigorous analysis of new ideas, argues Democracy Program Senior Counsel Alicia Bannon in Rethinking Judicial Selection in State Courts. Current systems are simply not working and reform ideas put forth so far do not meet today’s challenges.

“While there is growing recognition of the problems facing state courts, many of the proposed solutions have not been fully responsive to these challenges,” she writes. “We hope to spur an important conversation — and innovation — regarding how states choose their judges.”

To better understand the problem, we must also understand how judicial selection operates today. The interactive map is a one-stop-shop where users can learn about selection methods for various court levels, across multiple phases of selection. The map provides detailed descriptions of the processes in each state, groups states together based on selection process similarities, and helps easily discern geographic patterns across the country. The tool will be regularly updated to reflect the latest state information.

“This is a unique resource that we’re excited to offer allies and other stakeholders in the field,” says Wendy Weiser, the director of the Democracy Program at the Brennan Center. “It’s a comprehensive and interactive catalog of a range of selection methods, which can help identify traditional and hybrid solutions to alleviate some of the threats we’ve seen to the judiciary. It’s only by understanding the country’s current landscape that we can better develop new solutions.”     

See all of the Rethinking Judicial Selection resources here.