RESOURCES


Judicial Selection in the States

      
William Raftery, Knowledge and Information Services Analyst, National Center for State Courts

The 1970s and 1980s marked the rise of merit selection for judges. However, recent trends have been to eliminate merit selection, alter its components, or return judicial selection “to its roots.” 

Jed Shugerman, in his survey of state judicial selection from the Revolution to today, noted that each iteration of judicial selection was buttressed on the notion of judicial independence. Appointment by the governor was the default coming out of the Revolution, but the requirement of legislative confirmation meant the picks for the judiciary were to be at least somewhat vetted. This, in turn, was overtaken by the Jacksonian press for elections for all positions, again to ensure the judges were independent of politicians like governors and legislators. This was challenged by merit selection, which used a judicial nominating commission to vet candidates and retention elections to ensure no party boss controlled the process.

In the last several years, however, there has been pressure to move away from merit selection and, in the words of G. Alan Tarr (Rutgers University) and Brian T Fitzpatrick (Vanderbilt Law School), return judicial selection “to its roots.” This movement has come to the fore in the last eight years. One would have to go back to 1972-1980 to find another eight-year period in which so many judicial selection measures were enacted, or on the ballot, in so many states.

Movement Away from Merit Selection

Where the 1972-1980 period saw a focus on creating merit selection systems in the states, many of the 2006-2014 efforts have focused on ending such systems. Favored in particular as a replacement are quasi-federal systems: the executive appoints, the legislature (senate or house and senate) confirms, and the judges are subject to retention elections thereafter. Such a plan was adopted for the Kansas Court of Appeals in 2013, while at the same time a similar effort to end merit selection for the Kansas Supreme Court was approved by the house but failed to receive the required two-thirds vote in the state’s senate. Tennessee, whose merit selection plan had to be statutorily renewed on a semi-regular basis, allowed it to lapse. Instead, Tennessee voters in 2014 will decide whether to adopt a quasi-federal system.

Over the same time period, similar plans have advanced out of at least one chamber in Arizona, Florida, and Missouri. Additionally, there have been efforts to add some or all of these elements to existing merit selection systems, in particular senate or house-with-senate confirmation after appointment by the governor. Such a provision was a part of Florida Amendment 5 in 2012 and was rejected by voters, but similar proposals advanced out of at least one legislative chamber in Arizona and Kansas.

More common than absolutely repealing or adding stipulations to merit selection have been efforts to alter each of merit selection’s three key components.

1)    Candidates for judicial office screened by a nominating commission: The most consistent efforts to change merit selection have been attempts to give governors more power to add/remove judicial nomination commissioners. The most direct efforts involve adding more seats to the commission and making them subject to direct appointment by the governor. Another formulation approved by the Florida House in 2012 would have allowed the governor to fire the entire judicial nominating commission, or any member, at will. Missouri’s governor already controls three out of seven seats on that state’s appellate nominating commission; voters in 2012 rejected an attempt to give the governor control over a fourth seat as well.

A related but somewhat different proposal rests on removing lawyers from the commissions outright or on taking away seats designated for attorneys and transferring them to the governor or legislature. Arizona’s Proposition 115 of 2012 provided that attorney commissioners were to be appointed solely by the governor; the bar would still be able to recommend which attorney applicants it wished to see, but the governor would not be bound by the recommendations. Voters overwhelmingly rejected the proposal in 2012. A similar practice was adopted in Florida in 2001 and resulted in at least 16 separate sets of recommendations by the state bar being rejected in 2013.

This desire to remove attorneys from judicial nominating commissions played out in a unique way in Oklahoma in 2010. That state’s judicial nominating commission is made up of seats designated for attorneys and non-attorneys. State Question 752, as approved by voters, precluded from the non-attorney seats anyone whose “immediate family” included an attorney. A similar effort was debated in Missouri in 2011.

2)    A select few names submitted to the appointing authority, who must choose from them: Rather than rely on the three to five names given by the commission, governors have desired more choices. Utah, for example, in 2010 amended the law so that the governor must receive at least five names for trial court vacancies and seven names for appellate courts, up from three and five, respectively. Arizona’s legislature made two such attempts in as many years. In 2012, as part of Proposition 115, the legislature attempted to require the nomination commissions to send at least eight names to the governor, up from the current minimum of three. When that was rejected at the ballot box the legislature attempted to raise the minimum by statute from three names to five. That was held as unconstitutional by the Arizona Supreme Court in late 2013.

Another technique compels the commission to produce a second set of names if the governor rejects the first, effectively doubling the choices. Tennessee took this approach in 2009. Another, first used in Rhode Island in 2007 and renewed annually, allows the governor to select from the list of three to five names or to select anyone who had been on such a list in the previous five years. The result, in one case, was the appointment in May 2013 of a former senate president for a superior court vacancy based on the former senator’s vetting in August 2010.

3)    Appointee is subject only to retention elections for subsequent terms: Retention elections are those in which the candidate faces no opponent. Instead, voters must decide, on a yes/no basis, “Should Judge XXX be retained in office?” Generally speaking, these elections have a high degree of success; 99 percent of judges are retained in office, with an average yes vote of 74 percent. This lack of turnover, and inability to oust judges, has led some to push for something other than retention elections alone in merit selection systems. One particular idea is reappointment; that is, before running for a retention election, the judge must repeat the merit selection process (review by a commission and reappointment by the governor). Another is to have judges testify and be subject to questioning before the legislature’s judiciary committees.

Movement Toward Merit or Nonpartisan Selection

Happening simultaneously with the move away from merit selection has been, to a lesser degree, movement toward a merit or nonpartisan selection method in some states. Nevada’s legislature, for the third time in three decades (1972, 1988, and 2010), attempted to put merit selection in place for judges of the state’s higher courts; the 2010 effort failed 58-42 percent. In 2011 Utah shifted its justice-of-the-peace courts away from a system where the local government appointed the judges to the state’s existing merit selection system. Minnesota has effectively made two pushes for merit selection—in 2009/2010 and currently in the 2013/2014 session. Pennsylvania’s legislature has had some form of merit selection bill before it every year since 2001; it was defeated in a committee vote in 2012.

A somewhat related push involves efforts to end partisan elections and move toward nonpartisan. In particular are efforts by two chief justices, Wallace Jefferson of Texas (now retired) and Maureen O’Connor of Ohio, to end partisan labels for judicial races. As a result, in Texas a special committee of the legislature will examine all forms of judicial selection and make its recommendations for the 2015 legislative session.

Summary

It may very well be that Tarr and Fitzpatrick are correct and that we stand at the cusp of a repudiation of merit selection and a move toward less independent courts, that the level of independence exercised by state judges today is in their words “too much of a good thing,” and that “accountability” comes only when judges can be easily voted out of office or otherwise removed by the governor/legislature. Merit selection’s loss in Nevada in 2010 adds credence to this position; certainly, there are a great many governors, legislators, and even voters that appear inclined toward that direction. That said, efforts to enact just these sorts of overhauls of existing merit selection systems were rejected by the voters in 2012 in Arizona, Florida, and Missouri. In such a time of stalemate, therefore, it will be smaller items that achieve success—for example, the repeal of merit selection in Kansas, but only for the court of appeals. It may also be that areas tangentially related to judicial selection, such as recusal rules and public financing for judicial campaigns, may prove to be both more viable and practical until the winds of change more definitively blow one way or the other.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.