The American Bar Association “road map” publication, Patricia A. Garcia, Judicial Selection: The Process of Choosing Judges (Chicago: American Bar Association, 1998) (KF8776 .G37), provides the following breakdown of state judicial selection methods:

* 5 select judges by appointment without a nominating commission
* 15 choose judges through merit selection with a nominating committee
* 8 choose judges through partisan election
* 13 choose judges through nonpartisan election
* 9 choose judges through merit selection combined with other methods

For detailed state information, please see “Table 4: Selection of Appellate Court Judges,” and “Table 6: Selection and Terms of Trial Court Judges,” in David B. Rottman et al., State Court Organization, 2004 (Washington, DC: Bureau of Justice Statistics, 2006), and the American Judicature Society's Judicial Selection Methods in the States.

Proponents advocate merit selection over election on a number of grounds, including 1) judges should be chosen based upon qualifications (merit) rather than political or social connections; 2) merit selection reduces the negative influence of politics and money pervasive in judicial elections; 3) merit selection retains an electoral feature for removal of judges—a yes/no citizen vote for retention; and 4) merit selection increases representation of women and minority judges. For additional information about merit selection, please see the American Bar Association Fact Sheet on Judicial Selection. Additional judicial selection resources are also available from the American Judicature Society.

Proponents of judicial elections oppose merit selection for a number of reasons: 1) appointment of judges does not remove politics from the system and does not necessarily result in a more independent judiciary; 2) citizens have a right to elect judges—electing judges is compatible with democratic tradition; 3) voters can be entrusted to make rational choices; and 4) elections increase representation of women and minorities to the bench.

Please see “Table 5: Qualifications to Serve as an Appellate Court Judge,” and “Table 7: Qualifications to Serve as a Trial Court Judge,” in David B. Rottman et al., State Court Organization, 2004.

Qualities one would look for in legislative and executive branch candidates differ from the ideal qualities of neutrality, impartiality, and objectivity associated with judges.

For commentary, please see Hon. Joseph P. Nadeau, “What It Means to Be a Judge,” Bulletin--National Judicial Institute (September 1999).  Excerpts from this article were published in the December 1999 issue of New Mexico Court Link (KFN4108 .A15 M34).  For commentary on the role of judges in democracy, please see Nicholas P. Lovrich, Jr., “Preface,” in Charles Sheldon and Linda Maule, Choosing Justice: The Recruitment of State and Federal Judges (Pullman: Washington State University Press, 1997) (KF8776 .S5 1997).

“Section 1.21: Selection of Judges,” in the American Bar Association’s Standards Relating to Court Organization (Chicago: American Bar Association, 1990) (KF8720 .A44 1990) provides detailed commentary (pp. 49-51) on judicial qualifications.  The Guidelines for Reviewing Qualifications of Candidates for State Judicial Office, developed by the American Bar Association in 1984, set forth criteria for evaluating judicial candidates: integrity; legal knowledge and ability; professional experience; judicial temperament; diligence; health; financial responsibility; and public service. Please also see a series of thoughtful essays in George H. Williams and Kathleen M. Sampson, eds., Handbook for Judges: An Anthology of Inspirational and Educational Readings (Chicago: American Judicature Society, 1984) (KF8775 .A75 H3 1984).

The effects of judicial selection methods on recruitment of women and minority judges generate controversy. Because minority information tends to be reported voluntarily, it is difficult to obtain accurate national statistics describing the number of women and minority judges. More complete information can be found at the appellate level rather than at the trial court level.

The American Judicature Society (AJS) tracks percentages related to judicial selection and minorities and women for courts of last resort and intermediate appellate courts. For recent information, please contact AJS to request:

“African-American Judges Currently Serving on State Courts of Last Resort and Intermediate Appellate Courts,” White Paper  (1998).

“Women Judges Currently Serving on State Courts of Last Resort and Intermediate Appellate Courts,” White Paper (1998).

According to Charles Sheldon and Linda Maule, Choosing Justice:  The Recruitment of State and Federal Judges (Pullman: Washington State University Press, 1997), p. 133, “Studies on diversity on the bench only recently have attributed some success to merit plans. In 1993, an American Judicature Society study found that ‘the largest proportion of African Americans (32%) and women (35%) attained judicial office through the merit plan.’ However, it is the commitment of the appointing official and the diversity of the nominating commission that make the difference rather than any mechanics of the formal process involved.”

Several state racial- and ethnic-bias task forces have also examined the impact of judicial selection on minorities and women:

Georgia Supreme Court Commission on Racial and Ethnic Bias in the Court System, Let Justice Be Done: Equally, Fairly, and Impartially (Atlanta: Commission, 1995) (KFG510 .G46). See chapter 4, section 1, "Judiciary,” p. 52.

Massachusetts Commission to Study Racial and Ethnic Bias in the Courts, Equal Justice:  Eliminating the Barriers (Boston: Supreme Judicial Court, 1994) (KFM2910.5 .A3 M34 1994). See chapter 5, "Appointment of Judges,” p. 101. The publication is available through the Supreme Judicial Court's Public Information Office.

Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission, Reforming Practices Which Impede the Dispensation of Justice to Minorities in Florida, December 11, 1990 (Tallahassee:  Florida Supreme Court, 1990). See “Method of Judicial Selection and Minority Underrepresentation,” p. 16; “The Appointment Process: Ethnic Composition of Judicial Nominating Commissions Impede Recruitment of Minorities,” p. 17; and “The Election Process: The Need for Re-examination,” p. 19.

Other major research in this area includes M. L. Henry, Jr., The Success of Women and Minorities in Achieving Judicial Office: The Selection Process (New York: Fund for Modern Courts, 1985) (KF8776 .S83 1985). Findings indicate that appointment and merit-selection systems increase minority judicial representation to a greater extent than elective systems.

For further information please refer to the Race and Ethnic Fairness Initiative database.

Appendix 2 of the Report and Recommendations of the Task Force on Lawyers’ Political Contributions:  Part II (Chicago: American Bar Association, 1998) breaks down state selection methods by initial term and by subsequent terms for both appellate and trial court judges. Of the 1,243 state appellate judges, 1,084, or 87 percent, stand for some form of election, and 659, or 53 percent, stand for contestable election. Of 8,489 trial court judges (general-jurisdiction courts), 7,378, or 87 percent, stand for some form of election, and 6,560, or 77.3 percent, stand for some form of contestable election. However, the actual number of judges initially elected may be lower than these percentages suggest--many midterm elective judicial vacancies are filled by appointment before judges face voters at the polls.

Elected judges are generally subject to the same state campaign-finance laws as other state elected officials unless exceptions are especially provided for—state laws and judicial provisions vary considerably and to opposite extremes of regulation. Many states do not outline specific judicial regulations; those that do vary in the level of court and jurisdiction they target. Seven states with contribution limits specifically for judicial campaigns are Alaska, Idaho, Kansas, Missouri, Ohio, Texas, and Wisconsin (see Report and Recommendations of the Task Force on Lawyers' Political Contributions: Part II [Chicago: American Bar Association, 1998], footnote 49).  For an overview of state campaign-finance law, please see Edward D. Feigenbaum and James A. Palmer,  Campaign Finance Law 2002:  A Summary of State Campaign Finance Laws with Quick Reference Charts (Washington, DC:  Federal Election Commission) (KF4920 .C34).

Methods of judicial selection vary by state, by level of court and court jurisdiction, and sometimes by initial and subsequent method of judicial selection. Judges are selected in a variety of ways: by appointment without a nominating commission; by merit selection through a nominating commission; by partisan election; by nonpartisan election; or by merit selection combined with other selection methods. For ease of classification, judicial selection methods are generally classified by the initial method of selection. Table 4, “Selection of Appellate Court Judges,” and Table 6, "Selection of Trial Court Judges," in David Rottman et al., State Court Organization, 2004, provide a 50-state overview of selection methods. Table 5, "Qualifications to Serve as an Appellate Court Judge," and Table 7, "Qualifications to Serve as a Trial Judge," outline qualifications, including residency, age, and legal-credential requirements.  

Additional information on judicial selection methods in the states can be viewed in the Judicial Selection pages of the AJS Web site.

Ongoing political struggles within states over “who” will choose our judges lie at the heart of American’s judicial selection controversy.  The introductory chapter of Anthony Champagne and Judith Haydel, eds., Judicial Reform in the States (Lanham, MD: University Press of America, 1993) provides a comprehensive yet concise historical overview of American judicial selection.

The initial controversy in the United States began over a single point of contention at the federal level—which branch of federal government (the executive or legislative) would be responsible for appointing judges?  Despite resentment over King George III’s control over judicial selection, our founders believed judges should be appointed rather than elected.  A compromise was negotiated that called for “the president to appoint judges with the advice and consent of the Senate.”  Even so, the state-level controversy over legislative or gubernatorial appointment continued.

Controversy has characterized each succeeding judicial selection reform (partisan election, nonpartisan election, the Missouri Plan, and merit selection by appointment or with a commission).  No one method of judicial selection or judicial reform has completely replaced previous methods, which explains why so many variations of judicial election and appointment currently exist.

For state information on judicial nominating commissions, please see “Table 8: Judicial Nominating Commissions,” in David Rottman et al., State Court Organization, 2004.  For further information, see:

Section 1.21, "Selection of Judges, subsection (b)(i),” in Standards Relating to Court Organization (Chicago:  American Bar Association, 1990) (KF8720 .A44 1990).

Charles Sheldon and Linda Maule, Choosing Justice: The Recruitment of State and Federal Judges (Pullman: Washington State University Press, 1997) (KF8776 .S5 1997).  Chapter 6, "Appointments to State Courts,” and chapter 7, "Merit Commission for the Recruitment of State Judges,” are especially helpful.

Marla N.Greenstein, Handbook for Judicial Nominating Commissioners (Chicago: American Judicature Society, 1985) (KF8776 .G67).

When the popular election of judges began raising judicial independence concerns, the Progressives proposed electoral reforms, including the nonpartisan election of judges to lessen the negative effects of party politics upon the independence of the judiciary.

The Missouri Plan, also known as merit selection, was developed in 1913 as a compromise judicial election reform combining the best features of appointment while retaining an electoral feature.  In 1940 Missouri became the first state to adopt merit selection, and more states have embraced this reform throughout the century.