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Judicial Selection: Brennan Center Research

Recent publications from the Brennan Center include The Politics of Judicial Elections, 2017–18 and State Supreme Court Diversity.

Last Updated: January 2, 2020
Published: June 6, 2016

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.

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

  • 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.