Selection of Judges

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Selection of Judges

Sections within this essay:

Background and History
Formal and Informal Requirements of Judges
Selection of Federal Judges
Supreme Court, Courts of Appeals, District Courts
Chief Justice of the United States
Chief Judges
Bankruptcy Judges
Federal Magistrate Judges

State Methods of Judicial Selection
Election
Appointment and Merit Selection
Reelection and Retention
State-by-State Summary of Judicial Selection
Additional Resources
Organizations
Alliance for Justice
American Judicature Society
Center for Judicial Accountability

Background and History

The method by which judges are selected in the United States has been the subject of debate that predates the Revolutionary War. The king of Great Britain selected colonial judges but retained considerable power over them. The colonists so resented this power that the Declaration of Independence includes the following statement in reference to injuries that the colonists endured: "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

The states initially adopted the appointment method for selecting judges. In the early 1800s, the states of Georgia and Indiana modified their laws so that judges of lower courts were selected by popular election. Other states, including Michigan and Mississippi, also provided for selection by popular election by the 1830s. By the time the Civil War began, 24 of the 34 states elected their judges.

Election of judges lost some of its support after the Civil War. Critics charged that political machines had become responsible for the selection of judges like any other type of politician. Judges earned the reputation of being corrupt and incompetent. To combat this perception, a few states chose to elect judges based on nonpartisan elections where judges were not associated with political parties. The idea behind this option was that the parties could not control the judges, but in reality, the electorate had difficulty making decisions without the party labels attached to the judges.

The methods of judicial selection continued to be debated into the 20th century. Some organizations and individuals began to advocate for a method of selecting judges based on merit. Plans for merit selection of judges included provisions that would ensure that candidates would not be limited to friends of politicians, and that the merit of the prospective judge would be the primary factor in determining who could be a judge. Organizations such as the American Judicature Society and the American Bar Association endorsed such plans.

The method judicial selection varies considerably now from state to state. Methods for retaining judges after their initial term has expired likewise vary among the states.

Formal and Informal Requirements of Judges

Formal requirements vary among the states, although many states do not have strict minimum requirements. Neither the U.S. Constitution nor any federal statute set forth formal qualifications for federal judges. However, other factors may determine who will earn a seat on a federal bench. Although federal law does not require a federal judge to be an attorney, the vast majority of judges have distinguished themselves professionally as lawyers. This becomes even more important at the intermediate appellate court and Supreme Court levels.

Moreover, though certainly not a requirement, judges generally need some record of political activity for two main reasons. First, the prospective judge's service in politics may be rewarded through an appointment to the federal bench. Second, a judge generally needs to have some level of political activity to become noticed by those who select judges in the federal system.

Selection of Federal Judges

Supreme Court, Courts of Appeals, District Courts

Potential judges for positions on the benches of the U.S. Supreme Court, the courts of appeals and the district courts are nominated by the president and confirmed by the Senate. The president makes nominations after consultation with staff members in the White House and the attorney general's office. Individual members of the Senate and other political operatives may also have a say in the selection of these judges.

Once a judge is nominated, the Federal Bureau of Investigation conducts a routine security check on the nominee. The Senate Judiciary Committee is the body primarily responsible for screening judicial nominees. After conducting hearings on each candidate, the committee forwards its recommendations to the Senate as a whole. The Senate either approves or rejects a recommendation of the Senate Judiciary Committee by a simple majority vote. The decision to approve the judge is a permanent one, for under the Constitution, federal judges serve life terms.

Chief Justice of the United States

The process by which the chief justice of the Supreme Court is selected is the same as the initial selection of a judge or justice. The president nominates a person to serve as chief justice, the Senate Judiciary Committee reviews the nomination and makes a recommendation, and the Senate as a whole votes whether to accept the recommendation of the Judiciary Committee.

Although most chief justices have previously been associate justices of the Supreme Court, this is not always the case. In 2005, President George W. Bush nominated John Roberts to be chief justice after Roberts previously served on the D.C. Circuit Court of Appeals. Similarly, Warren Berger, a nominee of President Richard Nixon in 1969, elevated to the position of chief justice directly from a position on the D.C. Court of Appeals.

Chief Judges

Unlike the chief justice of the Supreme Court, a chief judge of a federal court assumes that position through seniority. In order to become a chief judge, a judge must satisfy the following conditions: (1) the judge must be 64 years of age or younger; (2) the judge must have served for at least one year on the bench; and (3) the judge must not have served previously as a chief judge.

Bankruptcy Judges

A bankruptcy judge serves as a judicial officer of a U.S. district court. Judges of the various courts of appeals appoint bankruptcy judges to serve in the bankruptcy courts within the various circuits. Unlike district court judges, bankruptcy judges do not serve life terms but are rather appointed to serve 14-year terms.

Federal Magistrate Judges

Magistrate judges are appointed by a vote of the active judges of a particular district court. These magistrate judges fulfill duties prescribed by statute and also as directed by the district court judges. Full-time magistrate judges serve terms of eight years.

State Methods of Judicial Selection

States vary in their methods of selecting judges, with judges elected in some states and appointed in others. Moreover, some states employ a hybrid system, where judges at one level of court are selected differently than those at another level of court. States also vary in their methods for retaining or reelecting judges.

Election

More than half of the states choose judges for at least some of their judges through popular election. Nonpartisan elections are slightly more prevalent than partisan elections. The initial terms of office vary widely from state to state

Appointment and Merit Selection

Many states employ nomination commissions to assist the respective governors or legislatures to select their judges. Most of these states use these commissions for initial appointments, though a few states only use them for interim appointments (i.e., appointments to fill vacancies). In a few states, the governor or legislature makes selections without the aid of nominating commissions.

Reelection and Retention

States likewise vary in their approaches when a judge's term expires. States generally follow one of three methods. First, some judges are reelected by popular election. Second, some judges are subject to a retention election, where the judge is the only person listed on a ballot. The question posed in a retention election asks voters whether a judge should be retained. Third, some judges are reappointed to additional terms.

State-by-State Summary of Judicial Selection

ALABAMA: All judges are selected by partisan elections. The initial term of office is six years. Judges are subsequently reelected to six-year terms.

ALASKA: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is three years. All judges are subject to retention elections, though subsequent terms vary depending on the level of court.

ARIZONA: Most judges are chosen through a merit selection process involving a nominating commission. The initial term of office is two years. Judges are subject to retention elections, though subsequent terms vary depending on the level of court. Judges for superior courts in counties with populations of less than 250,000 are elected by way of non-partisan elections to four-year terms. These judges are reelected to four-year terms.

ARKANSAS: All judges are selected by nonpartisan elections. The initial term of office is eight years, except for circuit court judges, who are elected to six-year terms. Judges are subject to reelection.

CALIFORNIA: The governor appoints nominees to the supreme court and courts of appeals to 12-year terms. These judges are subject to retention elections for additional 12-year terms. Superior court judges are elected in nonpartisan elections for six-year terms and may be reelected to additional six-year terms.

COLORADO: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is two years. All judges are subject to retention elections, though subsequent terms vary depending on the level of court.

CONNECTICUT: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is eight years. After a commission reviews a judge's performance, the governor nominates the judge for retention, and the state legislature confirms.

DELAWARE: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is 12 years. An incumbent subsequently reapplies to a nominating commission and competes with other applicants to be renominated by the governor. The state senate confirms the governor's appointment.

DISTRICT OF COLUMBIA: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is 15 years. A judicial tenure commission reviews each judge's performance six months prior to the expiration of the judge's term of office.

FLORIDA: Judges for the supreme court and district courts of appeal are chosen through a merit selection involving a nominating commission. The initial term of office is one years. Judges are subject to retention elections for six-year terms. Judges for circuit courts are elected by way of nonpartisan elections to six-year terms. These judges are reelected to additional terms.

GEORGIA: All judges are selected by nonpartisan elections. The initial term of office is six years for appellate judges and four years for superior court judges. Judges are subsequently reelected to additional terms.

HAWAII: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is 10 years. A judicial selection commission reappoints judges to additional 10-year terms.

IDAHO: All judges are selected by nonpartisan elections. The initial term of office is six years for appellate judges and four years for district court judges. Judges are subsequently reelected to additional terms.

ILLINOIS: All judges are selected by partisan elections. The initial term of office is 10 years for appellate judges and six years for superior court judges. Judges are subject to retention elections for additional terms.

INDIANA: Appellate judges are chosen through a merit selection process involving a nominating commission for two-year terms. Appellate judges are subject to retention elections for 10-year terms. Circuit and superior court judges are generally selected through partisan election for six-year terms. Judges in some counties, however, are elected in nonpartisan elections.

IOWA: All judges are chosen through a merit selection process involving a nominating commission. The initial term of office is one year. All judges are subject to retention elections, though subsequent terms vary depending on the level of court.

KANSAS: Most judges are chosen through a merit selection process involving a nominating commission. The initial term of office is one year. These judges are subject to retention elections, though subsequent terms vary depending on the level of court. Judges in courts of 14 districts are elected in partisan elections.

KENTUCKY: All judges are elected in nonpartisan elections to eight-year terms. Judges are subsequently reelected to additional terms.

LOUISIANA: All judges are elected in partisan elections. Appellate judges are elected to 10-year terms, while district court judges are elected to six-year terms. Judges are subsequently reelected to additional terms.

MAINE: Judges are appointed by the governor for seven-year terms. Judges are reappointed by the governor, subject to confirmation by the legislature.

MARYLAND: All judges are chosen through a merit selection process involving a nominating commission to one-year terms. Appellate judges are subject to retention elections for subsequent 10-year terms. Circuit court judges are selected in nonpartisan elections.

MASSACHUSETTS: All judges are chosen through a merit selection process involving a nominating commission. Judges serve until they reach the age of 70.

MICHIGAN: Supreme court judges are elected in partisan elections to eight-year terms. Intermediate appellate court judges and circuit court judges are elected in nonpartisan elections to six-year terms. All judges are subsequently reelected to additional terms.

MINNESOTA: All judges are appointed by nonpartisan elections. The initial term of office is six years. Judges are subsequently reelected to additional terms.

MISSISSIPPI: All judges are appointed by nonpartisan elections. The initial term of office is eight years, except for chancery court and circuit court judges, who are elected to four-year terms. Judges are subject to reelection for additional terms.

MISSOURI: Appellate court judges are chosen through a merit selection process involving a nominating commission to one-year terms. These judges are subject to retention elections for 12-year terms. Circuit court judges are elected to six-year terms and are subject to reelection for additional terms.

MONTANA: Judges are elected by nonpartisan elections. Judges are subject to reelection, except that unopposed judges are subject to retention elections.

NEBRASKA: All judges are chosen through a merit selection process involving a nominating commission to three-year terms. Judges are subject to retention elections for six-year terms.

NEVADA: All judges are appointed by nonpartisan elections to six-year terms. Judges are subject to re-election for additional terms.

NEW HAMPSHIRE: All judges are appointed by the governor. Judges serve until they reach the age of 70.

NEW JERSEY: All judges are appointed by the governor to seven-year terms. Judges are reappointed by the governor with the advice and consent of the senate.

NEW MEXICO: All judges are chosen through a merit selection process involving a nominating commission.

NEW YORK: Appellate court judges are chosen through a merit selection involving a nominating commission. Judges on the Court of Appeals serve 14 years, while judges in the Appellate Division of the Supreme Court serve five-year terms. Supreme Court and county court judges are elected in partisan elections.

NORTH CAROLINA: All judges are selected in nonpartisan elections. The initial term of office is eight years, and judges are subject to reelection.

NORTH DAKOTA: All judges are selected in non-partisan elections. The initial term of office for the supreme court is ten years, while district court judges are elected to six-year terms. Judges are reelected to additional terms.

OHIO: All judges are selected in partisan elections for six-year terms. Judges are reelected to additional terms.

OKLAHOMA: Appellate court judges are chosen through a merit selection process involving a nominating commission to one-year terms. These judges are subject to retention elections for additional six-year terms. District court judges are selected in non-partisan elections for four-year terms and are reelected for additional terms.

OREGON: All judges are selected in nonpartisan elections for six year terms. Judges are reelected for additional terms.

PENNSYLVANIA: All judges are selected in partisan elections for ten-year terms. Judges are subject to retention elections for additional ten-year terms.

RHODE ISLAND: All judges are chosen through a merit selection process involving a nominating commission. Judges serve life tenure.

SOUTH CAROLINA: The state employs a 10-member Judicial Merit Selection Commission to screen judicial candidates. This committee recommends candidates to the General Assembly, which appoints judges. Judges are subject to reappointment by the legislature.

SOUTH DAKOTA: Supreme court judges are chosen through a merit selection process involving a nominating commission for a three-year term. These judges are subject to retention elections for eight-year terms. Circuit court judges are selected in non-partisan elections for eight year terms and are re-elected for additional terms.

TENNESSEE: Appellate court judges are chosen through a merit selection process involving a nominating commission. These judges are subject to retention elections for additional eight-year terms. Judges in the chancery courts, criminal courts, and circuit courts are selected in partisan elections for eight-year terms and are reelected for additional terms.

TEXAS: All judges are selected in partisan elections. Appellate judges are elected to six-year terms, while district court judges are elected to four-year terms. Judges are subsequently reelected to additional terms.

UTAH: All judges are chosen through a merit selection process by a nominating committee. Judges are subject to retention elections for additional terms.

VERMONT: All judges are chosen through a merit selection process by a nominating committee for six-year terms. Judges are retained by a vote of the General Assembly for additional six-year terms.

VIRGINIA: All judges are appointed by the legislature. Supreme court justices are selected for 12 years, while lower court judges are selected for eight year terms. The legislature reappoints judges for additional terms.

WASHINGTON: All judges are selected in nonpartisan elections. Appellate court judges are elected to six-year terms, while superior court judges are elected to four-year terms. Judges are reelected for additional terms.

WEST VIRGINIA: All judges are selected through partisan election. Supreme court justices are elected for 12 years, while circuit court judges are selected for eight-year terms. Judges are reelected for additional terms.

WISCONSIN: All judges are selected through non-partisan election. Supreme court justices are elected to ten-year terms, while lower court judges are elected to six-year terms. Judges are reelected for additional terms.

WYOMING: All judges are chosen through a merit selection process by a nominating committee for one-year terms. Judges are subject to retention elections for additional terms.

Additional Resources

Advice and Consent: The Politics of Judicial Appointments. Epstein, Lee and Jeffrey A. Segal, Oxford University Press, 2005.

Choosing Justice: The Recruitment of State and Federal Judges. Sheldon, Charles H. and Linda S. Maule, WSU Press, 1997.

Judicial Selection in the States: Appellate and General Jurisdiction Courts. American Judicature Society, 2004. Available at: http://www.ajs.org/js/JudicialSelectionCharts.pdf.

The Relationship Between Judicial Performance Evaluations and Judicial Elections. Brody, David C., Judicature, Jan. 2004. Available at: http://www.kcba.org/judicial_selection/pdf/brody.pdf.