The process to become a federal judge received a lot of attention this spring when President Biden nominated Ketanji Brown Jackson, a federal appeals court judge, to replace Stephen Breyer on the U.S. Supreme Court. Federal court judges are nominated by the president and confirmed by a vote of the Senate and enjoy lifetime tenures, and much of the coverage focused on how Judge Jackson fared in her previous confirmation process. But the federal courts aren’t the only part of our court system — there are thousands of state court judges, too. But how do people become judges in the state court systems? While no state selects judges in exactly the same way as another, there are some commonalities that exist across state lines. Here, we break down how states select judges and the implications these methods may have.
There are five primary ways that state judges become judges:
1. Partisan election
In some states, judges are chosen just like other government positions — through a partisan election with candidates nominated by political parties. Usually, parties select nominees through partisan primaries.
Since 2018, North Carolina has used partisan elections to fill all vacancies in its court system, from the state Supreme Court all the way down to the trial courts. Candidates run for their party’s nomination during the state’s primary election and the party nominees face off in the November general election for an eight-year term. In the event of a vacancy mid-term, the governor appoints a new judge who must run for election in the next general election.
2. Nonpartisan elections
Several states also hold elections for judges, but these elections are nonpartisan and judges are listed on the ballot without any partisan affiliation. Primary elections can be held, but only to whittle down the list of candidates to two, not to select nominees from each party. Political parties can and do endorse candidates, but this information is not available on the ballot.
Oregon holds nonpartisan elections for all judges, all of whom serve six-year terms. A primary election is held in May — if a candidate receives more than 50% of the vote in the primary, they are elected. If not, the top two candidates move on to the November general election. The governor fills vacancies that occur mid-term, and appointed judges must run for election at the next general election.
3. Legislative election
In a handful of states, judges are selected by the state legislature, with no input from either the governor or the electorate.
All judges in Virginia are selected by the Virginia General Assembly, a process that dates back to the colonial period. Judges are elected by a majority vote of both chambers. If a vacancy occurs and the General Assembly is not in session, the governor can appoint a temporary judge to fill the vacancy until the General Assembly can vote on a candidate.
4. Gubernatorial appointment
Some states mirror the federal government’s judicial selection process by having the governor nominate judges. The appointment is confirmed by another governmental body, usually a chamber of the state legislature or the governor’s council.
In California, the governor nominates all judges to the state Supreme Court and California Courts of Appeal (the state’s intermediate appellate court). These nominees must be confirmed by the Commission on Judicial Appointments, which consists of the chief justice of the state Supreme Court, the state’s attorney general and the most senior presiding justice of the Court of Appeal that has the vacancy. At the end of their 12-year terms, the judges face yes-or-no retention elections where they must receive a majority of the vote if they wish to remain in office.
5. Merit selection
This method — also called assisted appointment or the Missouri plan — is the most common, with 14 states using it to select judges for their supreme court. While the specifics vary by state, in this method the governor selects judges from lists of eligible candidates created by a nonpartisan nominating commission that bases its decisions on candidates’ qualifications and experience. These judges are usually subject to a retention election shortly after their appointment, and again at the end of their terms, giving the electorate some influence over judges.
Hence the name of the method, Missouri was the first state to adopt this way of appointing judges. In Missouri, commissions, made up of judges and lawyers nominated by the state bar association and citizens appointed by the governor, review applications and submit three names for each vacancy to the governor. The governor has 60 days to select one of the three, and if they fail to do so in time, the commission picks the judge. Within a year of their appointment, judges face a retention election that gives the voters an opportunity to weigh-in.
States can — and do — employ different methods for different levels of the court system. In Arizona, for example, judges for the state Supreme Court and appeals court are nominated by the governor from a list of names submitted by the Commission on Appellate Court Appointments. Many trial court judges, however, are elected by the voters.
The judicial selection method a state uses has significant implications on the courts.
Which method a state uses isn’t just a piece of trivia — it has real implications for the composition of the courts and the administration of justice in those states. A major focus in recent years has been the impact of elections on judges, given the increased attention and the rise in outside money being poured into judicial races.
Judicial elections, even nonpartisan ones, run the risk of undermining the independence of the court system and increasing the power of special interests. Recent research suggests judicial elections create conflicts of interest in the courtroom. In 2016, for example, one candidate for a state Supreme Court seat in Louisiana was funded by oil and gas companies — even though they would likely have had to participate in many cases involving the industry. While causality is hard to prove, there is a correlation between donor support and rulings by judges in favor of their donors’ special interests. Elections also impact the outcome of criminal cases, making it less likely judges will rule in favor of defendants and more likely to issue punitive sentences.
Legislative election of judges exhibits similar drawbacks. Selection of judges tends to become a closed-door process with little transparency, and legislators often favor former legislators. Money can still play a role in filling vacancies, and legislative dysfunction could result in long periods of time passing before vacancies are filled. Merit selection, meanwhile, poses its own problems, as retention elections typical of the process can become just as politicized as other judicial races.
The methods states use to select judges also have implications for the diversity of the judiciary. People of color are more likely to become judges through appointment by their governor rather than elections — although state courts, no matter the method, lag behind the country in diversity. Additionally, the increasing cost of judicial elections is a barrier to anyone without the means to fund an expensive campaign.
Reformers are encouraging states to move away from judicial elections.
No method of judicial selection is perfect, but given the problems associated with judicial elections, many advocates are urging states to do away with judicial elections. Given the tradeoffs involved in other selection methods, any proposed reform needs to be considered carefully to ensure it doesn’t create more problems than it solves. With state courts deciding upwards of 95% of cases filed in this country, ensuring the impartiality and independence of the state judiciary should be a high priority for anyone worried about the state of our democracy.