Judicial Selection Methods

Methods

Five general methods are used to select judges in the United States: legislative appointment, executive appointment, partisan elections, nonpartisan elections, and merit selection. The methods used by each state for selecting trial court and appellate judges, which are listed in Tables 1 and 2, are dictated by state constitution. As societal values, public policy concerns, and priorities have changed over time, so have state constitutions. Not surprisingly, the methods used to select judges have also changed through the years.

State court systems have multiple levels and types of courts. All court systems have trial courts and appellate courts. In addition, there are different levels of trial and appellate courts in many states. The fact that in many states the method used to select judges varies among the different types of courts makes it difficult to categorize a state as following a certain selection procedure. Rather than trying to pigeonhole states into a single category, Tables 1 and 2 list separately the methods used by each state for selecting trial and appellate court judges respectively.

Legislative Appointment

Following the American Revolution, a majority of the original thirteen states operated under a system where judges were selected by the state legislature. Given the recent experience of the colonists with the judges appointed by the king, it is not surprising that the power to appoint judges would be taken away from an executive and placed in the hands of a legislature that was itself elected by the people. Well over 200 years after the American Revolution, several of the original thirteen states still have their judges appointed by the legislature.

Where this method of appointment is employed (currently only in Virginia), judicial candidates must be approved by both houses of the legislature. The governor has no formal role in the selection process. While no one doubts the importance of this method of selection at the nation's birth, its continued use has drawn considerable criticism. Commentators argue that legislators are not qualified to evaluate the qualifications of judicial candidates. In addition, it is argued that legislatures are inherently political, and having them select judges makes the process unduly political, with legislators seeking primarily to have individuals appointed who share their ideological and political beliefs, as opposed to candidates with the strongest knowledge of the law and the best judicial temperament. It is also feared that decisions made by a judge whose appointment was made possible by a few key legislators may be influenced by the perceived need to repay the debt incurred in the appointment process. While these criticisms may or may not be valid, it is interesting to note that historically, in states that select judges through legislative appointments, a significant majority of judges appointed to trial courts previously served as state legislators.

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