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Judicial Nominating Commissions

Summary: An analysis finds that despite varying methods of selecting them, state commissioners are almost uniformly professionally homogeneous.

Published: May 29, 2019

In a recent report, the Bren­nan Center proposed reforms to judi­cial selec­tion meth­ods that would reduce partisan and polit­ical pres­sures on judges. One key element of that proposal is an inde­pend­ent, publicly account­able nomin­at­ing commis­sion to recruit, eval­u­ate, and recom­mend judi­cial candid­ates for appoint­ment.

Thirty-four states and the District of Columbia already use a commis­sion as part of the selec­tion process for at least some of their high court judges, but not all commis­sions are alike. Commis­sions differ in size, compos­i­tion, and legal author­ity, not to mention the back­grounds of the indi­vidual commis­sion­ers that serve on them.

Build­ing on prior research, this paper assesses who has influ­ence on commis­sions today, both on paper and in prac­tice, by examin­ing the commis­sions’ members. It first analyzes the relev­ant provi­sions of state consti­tu­tions, stat­utes, and exec­ut­ive orders dictat­ing who serves on commis­sions and who appoints commis­sion­ers. Then the paper details the find­ings of a first-of-its-kind nation­wide analysis of the profes­sional back­ground of nearly 340 nomin­at­ing commis­sion­ers in 26 juris­dic­tions that use commis­sions to fill all vacan­cies on their high courts.

Ulti­mately, this analysis 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. It also shows that despite the vari­ety of commis­sion designs, there is a near-uniform lack of profes­sional diversity among commis­sion­ers. Among the key find­ings:

Governors appoint a major­ity of commis­sion­ers in less than half of commis­sion states. Major­ity control gives governors substan­tial power to shape a commis­sion’s prior­it­ies in 15 states, but that power is far from univer­sal. In more juris­dic­tions — 16 of 35 — no single author­ity appoints a major­ity of commis­sion­ers.

Lawyers predom­in­ate, even when the law does not require it. In 26 of 35 juris­dic­tions, lawyers filled a major­ity of commis­sion seats, even though only 15 require lawyer major­it­ies. Lawyers have a unique perspect­ive highly relev­ant to judges’ work, but they are not fully repres­ent­at­ive of the public whose rights those judges’ decisions will affect. Nonlaw­yer commis­sion­ers fill a major­ity of commis­sion seats in just six states and half of the seats in three states.

Many juris­dic­tions reserve seats for vari­ous polit­ical, geographic, and profes­sional interests. Nearly half of juris­dic­tions either reserve seats for each of the two major polit­ical parties or limit the abil­ity of one party to command a super­ma­jor­ity on the commis­sion. Twenty-one also require commis­sion­ers from differ­ent geographic regions in the state. A few even mandate repres­ent­a­tion for commis­sion­ers with partic­u­lar profes­sional back­grounds such as prosec­utors, defense attor­neys, or corpor­ate coun­sel. While 10 states call for their commis­sion­ers to reflect the state’s demo­graphic diversity, these provi­sions are likely not specific enough to ensure this kind of diversity without appoint­ing author­it­ies who inde­pend­ently make it a prior­ity.

Corpor­ate and plaintiffs’ attor­neys are best repres­en­ted. Attor­ney commis­sion­ers with those back­grounds had seats on 22 and 20 commis­sions, respect­ively, of the 26 for which we analyzed profes­sional back­ground. Mean­while, other relev­ant voices includ­ing current and former prosec­utors, public defend­ers, and civil legal service providers sat on just eight, five, and two commis­sions, respect­ively. By way of compar­ison, lobby­ists sat on nine commis­sions.

Nonlaw­yer commis­sion­ers are also homo­gen­eous. Nearly two-thirds of those commis­sion­ers came from either private industry or the legis­lat­ive or exec­ut­ive branches of govern­ment.