Judicial Selection and Retention

Resource Guide

State justices are selected in a variety of ways: through the 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 methods.  Contemporary judicial selection concerns include the controversy over merit selection of judges vs. the election of judges, the need for judicial election reform, and the effect of the method of judicial selection on the number of minorities and women seated on the bench.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Links

Judicial Selection in the States.

A Web site sponsored by the American Judicature Society, which has compiled comprehensive information on judicial selection processes in each of the fifty states and the District of Columbia.  Topics covered include methods of selecting, retaining, and removing of judges; successful and failed reform efforts; roles of parties, interest groups, and professional organizations in selecting judges; and the diversity of the bench.

Gavel to Gavel Database.

Search the Gavel to Gavel legislation database based on state, year, legislation category, or any combination.  Bill Types = "Selection" and "Qualifications and Terms".

Operating Effective Judicial Campaign Oversight Committees Resource Center.

Established by the National Center for State Courts, a non-profit organization improving justice through leadership and service to state courts.

General

Aspin, Larry T. Retention Elections and Evaluations: A Response to Current Trends in Contested Judicial Elections?. (2007). Future Trends in State Courts.

The article provides a detailed look at the major points and statistics surrounding retention elections in state courts. The article also addresses methods some states have implemented in retention elections.

Boyea, Brent D. Time Served in State Supreme Courts: Mapping the Determinants of Judicial Seniority. (2011). Justice System Journal (Vol. 32, No. 1).

This study compares judicial seniority in state supreme courts by evaluating the conditions in which the political opportunity structures of state courts influence the length of judicial service. Characteristics of the political opportunity structure include factors that place the careers of judges at risk, reward judges for service, and determine the costs for remaining on courts. The results reveal that methods for keeping judges on courts and teh structural features of state court systems strong affect judicial tenure.

Vinning, Richard L. Jr. Judicial Departures and the Introduction of Qualified Retirement, 1892 - 1953. (2009).

Justice System Journal (Vol. 30, No. 2).

This study is based on the 1919 change in retirement options that allows judges to retire rather than resign. With this new option, judges could retire and still "perform judicial duties, and their retirement pay could not be diminished." The conclusion of the study determined that judges did not use this option to their advantage because of personal and institutional factors rather than political ones.

Wasby, Stephen L. The Battle Over Judicial Elections: Right Argument, Missed Audience, or: The Book We Should Have Had. (2009). Justice System Journal (Vol. 30, No. 3).

This article is an analysis of the book In Defense of Judicial Elections by Chris W. Bonneau and Melinda Gann Hall. It covers basic problems with the book such as who the book is targeted for, why it is a book in the first place, and potential flaws in data presented.

 

Rottman, David B. The Changing Face of Judicial Elections: Can the Past Tell Us About the Future?. (2009). Future Trends in State Courts.

Trends in how judicial campaigns are conducted and are in the methods by which states choose to select their judges merit close scrutiny.

Hall, Melinda Gann. The Controversy Over Electing Judges and Advocacy in Political Science. (2009). Justice System Journal (Vol. 30, No. 3).

This paper argues that judicial elections have not been studied previously, and now is the time for political scientists to focus on them.

Strebb, Matthew J. The Need for More Individual-Level Judicial Election Data. (2009). Justice System Journal (Vol. 30, No. 3).

This study argues that individual-level data of judicial elections is important for understanding the dynamics of judicial elections. Common assumptions (for example, that judicial elections are noncompetitive) are no longer relevant, adn it is hard to analyze the elections at the aggregate level.

Dancy, Denise. Judicial Selection. (2008). Future Trends in State Courts.

Highlights important actions states have taken since the 1980s to improve their judicial selection processes and discusses issues and innovative practice, as well as the future of judicial selection.

Caufield, Rachel Paine and Malia Reddick. Judicial Selection: The Process of Choosing Judges. (June 2008). ABA Coalition for Justice This resource provides a history of judicial selection, discusses current selection methods and provides reasons for reform, along with ideas as to where and how reforms should begin. 
Voter Opinion on the Election or Appointment of State Supreme Court Justices. (July 2008). American Justice Partnership Foundation This national survey shares voters' opinions about the merits of the arguments in favor of electing versus appointing state supreme court justices, as well as public campaign financing of such elections.
Hurwitz, Mark S. Judge Lopez Torres and New York's Trial Judge Nominating Process. (2007). ustice System Journal (Vol. 27, No. 1).

This article reviews the facts of the Torres case, which was before the U.S. Supreme Court, in which a judge is suing the state's board of elections for violating the First Amendment's freedom of association rights of judicial candidates.

Aspin, Larry. Judicial Retention Election Trends: 1964-2006. (March 2007). Judicature 90, no. 5: 208 This article provides updates on four areas of interest concerning judicial retention: the affirmative vote, defeated judges, voter differentiation, and roll off.  The states used in the study include Alaska, Arizona, Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska and Wyoming.  The author found that voters continue to retain almost all judges.
Choi, Stephen J., G. Mitu Gulati, and Eric A. Posner. Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary. (August 2007). The Law School, The University of Chicago This paper explores the differences between an elected and an appointed judiciary using measures of effort, skill and independence. 
Douglas, Davison M. Election Law: What State Courts Should Expect. (2006). Future Trends in State Courts.

This article shows how the election-related litigation in state courts has dramatically increased in recent y ears and how the trend wiill continue through the November 2006 election and for the forseeable future.

Judicial Independence and Selection. (2006).

Top Ten article from "Future Trends in State Courts, 2006.

Judicial Selection and Service (Tables 4-11). (2006). State Court Organization 2004. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics These tables set forth qualifications for appellate and trial court judges, selection methods and terms of service, ongoing judicial education requirements, and rules governing judicial discipline in the states.
Sample, James et al. The New Politics of Judicial Elections 2006. (2006). Justice at Stake Campaign, Washington, D.C. How 2006 Was the Most Threatening Year Yet to the Fairness and Impartiality of Our Courts - and How Americans are Fighting Back.  This report analyzes judicial election issues, such as television advertising, election spending and costs, interest group involvement, and reform efforts.  (KF8775 S26 2007).
Saloka, Rebecca Mae, D. Jason Berggren and Kathryn A. DePalo. The New Politics of Judicial Selection in Florida: Merit Selection Redefined. (2006). Justice System Journal (Vol. 27, No. 2).

This article analyzes the legislative changes in Florida's merit selection process, which gave the governor more influence in selecting not only judges but members of the nominating commissions as well.

Bonneau, Chris W. Vacancies on the Bench: Open-Seat Elections for State Supreme Courts. (2006). Justice System Journal (Vol. 27, No. 2).

This article examines open-seat elections (elections without an incumbent) and the factors that affect their outcomes, including characteristics of the candidates, the electoral context and value of the seats, and institutional arrangements.

Judicial Democracy. (October 2003). Lexington, KY, Council of State Government This edition of TrendsAlert reviews the rising costs of judicial campaigns, interest group involvement in judicial campaigns and public confidence in the judicial system.  The pros and cons of appointment, election and merit system selection of judges are weighed.  Finally, the resource concludes with discussion about issues regarding campaign finance and conduct, voter awareness and judicial conduct on the bench. 
Danos, Colleen. Judicial Election and Judicial Independence Concerns: Stepping Up to the Plate. (March 2003). Knowledge and Information Services Memorandum.

This staff memorandum discusses the relation of judicial selection methods, particularly judicial elections, to judicial independence. Concerns related to attacks on judicial candidates and attempts by business and political interests to influence judicial elections are examined.

Rottman, David and Roy Schotland. Judicial Selection at the Crossroads. (January 2003). Report for the Conference of Chief Justices.

An overview of the 2002 Judicial Elections.

Dann, Honorable B. Michael, David Rottman, and Lynn Grimes. Focus: Reforming State Judicial Elections. (January 2002). Civil Action Vol, 1 No.2.

"Call To Action" statement that came out of the Summit on Improving Judicial Selection.

Kelly, Barbara. Advancing Civil Justice Reform. (January 2002). Civil Justice Reform Initiative.

More than 15 million civil cases are processed annually through the state courts. In 2000, The National Center for State Courts (NCSC) launched a major reform initiative to actively improve America's civil justice system.

Rottman, David. A Call to Action with Commentary. (November 2002).

The "Call To Action" was issued by the participants in the National Summit on Improving Judicial Selection, held on December 8-9, 2000 in Chicago, Illinois. This new edition of the Call To Action provides a commentary that introduces the four sections of the Call To Action and provides background on the 20 recommendations.

Where Do Colorado Judges Come From?. Colorado Bar Association Colorado Bar Association’s piece explaining the state’s merit selection plan as well as suggesting ways to improve the system.
Reed, Barbara and Roy Schotland. Effective Judicial Campaign Conduct Committees. (November 2001).

This is a classic "how-to" handbook prepared for the Symposium on Judicial Campaign Conduct and the First Amendment.

Campaign Financing Reforms

Bonneau, Chris W., Melinda Gann Hall and Matthew J. Streb. White Noise: The Unrealized Effects of Republic Party of Minnesota v. White on Judicial Elections. (2011). Justice System Journal (Vol. 32, No. 3).

Conventional wisdom states that White has heightened the politicization of judicial elections by facilitating expensive, below-the-belt exchanges that aharply attenuate the incumbency advantage and threaten the legitimacy of state courts. The authors' primary assumption is that if White has had the presumed efects, then there should be measurable changes in key judicial election characteristics: an increased willingness of challenges to enter the electoral arena, decreased electoral support for incumbents, elevated costs of campaigns, and declines in voter participation. Overall, the authors find no statistically discernable changes in state supreme courts or state intermediate appellate court elections on these dimensions.

 

Justice For Sale: An Investigation into How Campaign Cash is Corrupting America`s Courts. (1999). PBS Boston, Frontline Extensive website on judicial selection, including video, web links, quiz, and discussion board.

Handbooks

Running for Public Office: A <i>Plain English</i> Handbook for Candidates. (2014). Little Rock: Arkansas State Board of Election Commissioners, Office of Secretary of State, Arkansas Ethics Commission
Judicial Campaign Ethics Handbook. (2003). New York: New York State Unified Court System, Office of Court Administration, Advisory Committee on Judicial Ethics

Women and Minority Judicial Candidates

Cochet, Joan and Walt Latham. Judicial Selection and Retention Membership on State Court of Last Resort, by Gender. (July 2008).

A table of the number of women on state's courts of last resort.

Cerda, David A. Judicial Selection: A Hispanic Perspective. (Spring 2000). American Bar Association, Commission on Racial & Ethnic Diversity in the Profession, Goal IX 6, no. 2
Jones, Sidney A., III. Judicial Selection: An African-American Perspective. (Spring 2000). American Bar Association, Commission on Racial & Ethnic Diversity in the Profession, Goal IX 6, no. 2
Otaka, Sandra R. Judicial Selection: An Asian American Perspective. (Spring 2000). American Bar Association, Commission on Racial & Ethnic Diversity in the Profession, Goal IX 6, no. 2