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Judicial Selection: A Glossary of Terms

A glossary of terms used in Judicial Selection – An Interactive Map.

Published: May 31, 2016

SELEC­TION PHASES

Interim Selec­tion: The method for filling a vacant court seat that becomes open in the middle of a judge’s term (for example, due to retire­ment).

First Full Term: The method for filling a vacant court seat that becomes open at the end of a judge’s term (for example, due to retire­ment or the loss of a reten­tion elec­tion).

Addi­tional Terms: How a judge approach­ing the end of a full term stands for addi­tional terms.

SELEC­TION METH­ODS

Elec­tions: In judi­cial elec­tions, candid­ates appear on the ballot in state or muni­cipal elec­tions, with the candid­ate with the largest share of the popu­lar vote filling the vacant court seat. Judi­cial elec­tions can be partisan, where judi­cial candid­ates appear on the ballot along­side their polit­ical party affil­i­ation, or nonpar­tisan, where party affil­i­ation is not desig­nated on the ballot.

Reten­tion Elec­tions: In some states, sitting judges seek­ing addi­tional terms stand in uncon­tested reten­tion elec­tions. In such elec­tions, the judge stands for an up-or-down vote, and no other candid­ates appear on the ballot. In most reten­tion elec­tion systems, a judge must receive a simple major­ity in order to be retained (ie., more votes in favor of reten­tion than against); however, some states, such as Illinois, require a higher percent­age of the vote in order for a judge to be retained.

Missouri Plan/Merit Selec­tion: A judi­cial selec­tion model which combines certain elements of appoint­ment- and elec­tion-based selec­tion meth­ods. Under the Missouri Plan, first adop­ted by its name­sake state, judi­cial vacan­cies are filled by the governor, who appoints a judge from a slate of candid­ates selec­ted by a nomin­at­ing commis­sion. Sitting judges approach­ing the end of their terms may seek addi­tional terms through stand­ing in an unop­posed yes/no reten­tion elec­tion.

Judi­cial Nomin­at­ing Commis­sion: Many states that appoint judges enlist a nomin­at­ing commis­sion to eval­u­ate candid­ates for a judi­cial vacancy. The commis­sion forwards a short list of candid­ates it finds most qual­i­fied to the appoint­ing author­ity. Judi­cial nomin­at­ing commis­sions vary widely in their size, compos­i­tion, and power. Commis­sion­er­s—who can be lawyers or non-lawyer­s—are typic­ally appoin­ted by the state’s legis­lat­ive and exec­ut­ive lead­ers, and the state bar asso­ci­ation also often appoints or nomin­ates members. A commis­sion’s sugges­tions can be bind­ing, mean­ing the appoint­ing author­ity’s selec­tion must come from the commis­sion’s list, or nonbind­ing, in which case the author­ity may select from the commis­sion’s list but is not required to do so.

Legis­lat­ive Appoint­ment: In a few states, judges are selec­ted by a vote of the state Legis­lature.

Supreme Court Appoint­ment: More common among lower courts than courts of last resort, some states select judges by a vote of the state supreme court.

Confirm­a­tion: Where judges are appoin­ted by the governor, some form of confirm­a­tion of the governor’s selec­tion by a repres­ent­at­ive body may be required. State law can make confirm­a­tion the respons­ib­il­ity of one or both branches of a legis­lat­ive body, a commis­sion of govern­ment offi­cials, or a coun­cil of elec­ted repres­ent­at­ives.

Hybrid Selec­tion: The Missouri Plan is not the only way that states combine appoint­ive and elect­ive judi­cial selec­tion meth­ods. For instance, some states use a version of the Missouri Plan without a bind­ing nomin­at­ing commis­sion and Hawaii uses a judi­cial selec­tion commis­sion instead of reten­tion elec­tions to decide whether sitting judges are retained for addi­tional terms.

Varies: In some state trial courts the judi­cial selec­tion method “varies,” mean­ing that differ­ent selec­tion meth­ods are util­ized in differ­ent judi­cial districts. The judi­cial selec­tion method applied in each district can depend on a district’s popu­la­tion or it can be the result of a local ballot initi­at­ive.