Judicial Selection: A Glossary of Terms

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.