Gubernatorial appointment of judges
From Ballotpedia - Reading time: 2 min
| Methods of judicial selection |
|---|
 |
| Election methods |
| Partisan election |
| Nonpartisan election |
| Michigan method |
| Retention election |
| Assisted appointment |
| Assisted appointment |
| Bar-controlled commission |
| Governor-controlled commission |
| Hybrid commission |
| Direct appointment |
| Court appointment |
| Gubernatorial appointment |
| Legislative election |
| Municipal government selection |
The gubernatorial appointment method of judicial selection is a process by which the governor appoints state judges directly without having to select from a list of names provided by a selection committee. As of April 2023, all states using this method required a legislative or other government body to confirm the appointments. This selection method is the most similar used for state supreme court judges to the one used at the federal level for Article III judges, who are appointed by the president and confirmed by the U.S. Senate.
As of April 2024, five states—California, Maine, Massachusetts, New Hampshire, and New Jersey—used this method at the state supreme court level and four states used this selection method for at least one type of court below the supreme court level.
Other methods of judicial selection include: assisted appointment, partisan and nonpartisan elections, the Michigan method, court appointment, municipal government selection, and legislative elections. To read more about how these selection methods are used across the country, click here.
How gubernatorial appointment works[edit]
The specifics of this selection method vary by state. In each state, the governor appoints a judge and is not required to select a name from a list provided to him or her by a judicial selection commission. After a nominee is chosen, another body must confirm the appointment before the nominee can take office. Below are examples of how gubernatorial appointment methods worked in six states, as of 2023.
- California: The governor's nominee must be confirmed by the California Commission on Judicial Appointments. This commission is made up of the state's attorney general, the chief justice of the California Supreme Court, and the state's most senior presiding justice of the California Courts of Appeal. The State Bar of California's Commission on Judicial Nominee Evaluation (also known as the Jenny Commission) evaluates all judicial candidates and makes non-binding recommendations to the governor.
- Maine: The governor's nominee must be confirmed by a majority vote of the Maine State Senate. Prior to a vote of the full chamber, the Judiciary Committee considers their nominations.
- Massachusetts: The governor's nominee must be confirmed by a majority vote of the Massachusetts Governor's Council. There are nine members of this council: the lieutenant governor and eight members elected every two years in partisan elections.
- New Jersey: The governor's nominee must be confirmed by a majority vote of the New Jersey State Senate. Prior to a vote of the full chamber, the Senate Judiciary Committee considers their nominations.
- New Hampshire: The governor's nominee must be confirmed by a majority vote of the New Hampshire Executive Council. The five members of the council are elected every two years in partisan elections.
States using this method[edit]
State supreme courts[edit]
At the state supreme court level, the following states use this selection method: California, Maine, Massachusetts, New Hampshire, and New Jersey.
The map below highlights selection methods in state supreme courts across the country.
The chart below details selection methods in state supreme courts across the country.
| Judicial selection methods in state supreme courts | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Michigan method | Assisted appointment | |
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| Total: 8 states | Total: 13 states | Total: 5 states | Total: 2 states | Total: 1 state | Total: 21 states & D.C. | |
Intermediate appellate and general jurisdiction courts[edit]
In selecting judges for the intermediate appellate and general jurisdiction courts, four states use gubernatorial appointment. The chart below details selection methods at these court levels across the country.
| Judicial selection methods in intermediate appellate and general jurisdiction courts[1] | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Assisted appointment | Combination of assisted appointment and other methods | |
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|
|
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| Total: 9 states | Total: 16 states | Total: 4 states | Total: 2 states | Total: 14 states & D.C. | Total: 9 states | |
Arguments in support of gubernatorial appointment[edit]
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[2]
| “ | Advantages of the appointment process are that candidates are shielded from the rigors of elective politics, at least initially, and appointments for a substantial term foster judicial independence (New York, for example, uses a 14-year term). Governors are arguably better suited to evaluate the fitness of judicial candidates than are ordinary voters, and the appointment decision, while undoubtedly political to some degree, is tempered by the accountability the governor has to the voters for the judges he or she appoints.[3] | ” |
In a paper published in 2018 by the Brennan Center for Justice titled Choosing State Judges: A Plan for Reform, author Alicia Bannon wrote:[4]
| “ | As a matter of democratic practice, there are important reasons to give the final selection authority to an elected, politically accountable actor. Doing so furnishes the public with the means to register satisfaction or dissatisfaction with appointment decisions through the electoral process.[3] | ” |
Each month, the National Judicial College emails an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad. In March 2020, their survey question was "Should judges be elected or appointed?" Below is a selected response arguing in support of judicial appointments.[5]
| “ | Judges should be independent and should not have to run for election. We have a code of ethics and are limited by what we can and can't say. We can't make promises and can't prejudge a case, often what those seeking political office do. Additionally, who are we most likely to raise money from? The lawyers who appear before us. Not a good practice. Running for election takes time away from doing what we are being paid to do - be fair and impartial judges, rule on cases in a timely manner, and not be swayed by public opinion - in essence be an independent judiciary.[3] | ” |
Arguments in opposition to gubernatorial appointment[edit]
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[2]
| “ | Disadvantages include the potential that judicial appointments will be used as "rewards" or "favors" for personal or political considerations, rather than the selection of the "best qualified" candidates . . . Another disadvantage is that gubernatorial appointment, by itself, can promote judicial independence at the expense of public accountability.[3] | ” |
In a paper published in 2006 by the Brennan Center for Justice titled Rethinking Judicial Selection in State Courts, author Alicia Bannon wrote:[6]
| “ | Are state appointment processes similarly politicized? There are some indications they may be becoming more so. In New Jersey, a dispute between the governor and state senate over whether a Democrat or Republican should fill a supreme court seat kept a vacancy open for six years.63 In other states, political leaders describe judicial appointments in overtly partisan terms. In Tennessee, when a justice appointed by a Democrat announced he was stepping down, giving the Republican governor an opportunity to shift the court’s majority, the state’s Lieutenant Governor announced it was “our turn” to put judges “capable of rendering conservative decisions” on the bench.[3] | ” |
Each month, the National Judicial College emails an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad. In March 2020, their survey question was "Should judges be elected or appointed?" Below is a selected response arguing in opposition to judicial appointments.[5]
| “ | The primary goal is to keep politics out of the Judicial process. This can not be done with Governor appointments who are politically motivated. The Court system belongs to the people not the Court or the legislature or the governor. Let the people make their choice and deal with their selection. Maybe the public will become more concerned about all their electoral selections and representation.[3] | ” |
Judicial selection methods[edit]
Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:
Election
- Partisan election: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
- Nonpartisan election: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
- Michigan method: State supreme court justices are selected through nonpartisan elections preceded by either partisan primaries or conventions.
- Retention election: A periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. Judges are not selected for initial terms in office using this election method.
Assisted appointment
- Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list.[7] At the state supreme court level, this method is further divided into the following three types:
- Bar-controlled commission: The state Bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
- Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
- Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control.
Direct appointment
- Court appointment: Judges are selected by judges in the state judiciary.
- Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
- Legislative election: Judges are selected by the state legislature.
- Municipal government selection: Judges are selected by the governing body of their municipality.
Brief history of judicial selection[edit]
At the founding of the United States, all states selected judges through either gubernatorial or legislative appointments.[4] In 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a national shift occurred as states joined them. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that achieved statehood after the Civil War provided for the election of some—if not all—of its judges.[8][9]
Scholars attribute the move toward judicial elections to a variety of factors, including:
- concern over an independent judiciary, especially after Marbury v. Madison established the judiciary's power as equal to that of the executive and legislative branches,
- imitation by the states,
- belief that judges at a local level should be accountable and responsive to their communities, and
- the growing popularity of Jacksonian ideals, which elevated the voice of the average American.[9]
Initially, all judicial elections were partisan. But as time went on, public trust in elected judiciaries wavered, and citizens who viewed the courts as overrun by machine politics began looking for alternative methods. Groups such as the Progressives, the American Bar Association, and the American Judicature Society led an effort to restore what they called "the traditional respect for the bench," which they said had been lost.[9]
One other popular selection method was the nonpartisan election of judges, first implemented by Cook County, Illinois in 1873. By not including party affiliation on the ballot, supporters argued, divisive partisan interests would find no footing in state and local selection processes.[9]
| “ | Since judges are supposed to be “above politics,” this reform was particularly popular regarding judicial selection. Nonpartisan judicial elections were perceived as a way to clean up corruption and cronyism in the judicial selection process while still keeping judges accountable to the people.[9][3] | ” |
| —Associate Professor Matthew J. Streb of Northern Illinois University | ||
Though states continued to experiment with selection methods throughout the next century, the methods of legislative elections and direct gubernatorial appointments did not see a return. No state that achieved statehood after 1847 had an original constitution calling for these methods except Hawaii, whose judges were initially chosen by gubernatorial appointment with senate consent.[8]
By 1927, 12 states selected judges in nonpartisan elections. Critics claimed that as long as judges had to campaign for office, politics would still play a role. Other critics questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, offering the assumption being that party affiliation communicates a candidate's values in an easy shorthand. Three states that had experimented with nonpartisan elections switched back to partisan ones by 1927.[9]
Out of these concerns arose a third kind of election, the retention election, which the American Judicature Society argued encapsulates the positive aspects of each selection system. Retention elections were meant to work within the assisted appointment method to give judges relief from campaigning against an opponent while also giving voters the power to remove those judges from office if necessary. In 1940, Missouri became the first state to adopt the assisted appointment method as we know it today, and since then more than thirty states followed suit, using some form of retention elections at some level of their judiciary.[9][10]
See also[edit]
External links[edit]
Footnotes[edit]
- ↑ States may use different selection methods for different courts in their state; in such cases, a state is listed for each selection method use for intermediate appellate and general jurisdiction courts.
- ↑ 2.0 2.1 The Federalist Society, "The Case for Judicial Appointments," January 1, 2003
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 4.0 4.1 Brennan Center for Justice, "Choosing State Judges: A Plan for Reform," accessed June 8, 2021 Cite error: Invalid
<ref>tag; name "brennancj" defined multiple times with different content - ↑ 5.0 5.1 National Judicial College, "Should judges be elected or appointed?" accessed June 4, 2021
- ↑ Brennan Center for Justice, "Rethinking Judicial Selection in State Courts," accessed June 7, 2021
- ↑ American Bar Association, "Judicial Selection: The Process of Choosing Judges," accessed August 10, 2021
- ↑ 8.0 8.1 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
- ↑ 9.0 9.1 9.2 9.3 9.4 9.5 9.6 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
- ↑ American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
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