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Who's Picking Your Judges?
gavel and scales
Comment
January 25, 2008

When you get your day in court, would you rather your judge were a Republican or a Democrat? Would you rather the money for their election campaign came from business groups or lawyers? How about a religious group?

These are not questions Americans are used to asking themselves. Yet, if you live in a state where judges are elected, you might start.

Few people stop to think about how a judge becomes a judge. The most visible process is the US Supreme Court, whose members are appointed by the president for life terms. But the states are different. Almost every one uses a unique combination of systems to select judges for each level of the court. Many states use some form of merit selection, 21 states hold popular elections for their supreme court, and eight of those use partisan elections.

Recently, interest groups — often with business before the court — have begun targeting judges for removal and replacement, pumping money into the system. Because of this, the cost of running a campaign for state supreme court has increased dramatically, with candidates raising over $100 million in the last three elections (2002-2006). And that figure doesn't even include independent expenditures, a growing source of campaign spending. (The New Politics of Judicial Elections 2002-2006)

>More on who's giving

More money means the number of ads has been increasing.

>See the growth in ad spending

Finding the best method of judicial selection is a problem that Americans have been experimenting with since the inception of the republic.

To find out more about how your state selects judges, including history and campaign finance data, visit the American Judicature Societies Judicial Selection Web site.

History

Deciding how a democracy should select judges has been a problem from day one. At first, continuing the tradition of appointing judges reminded early Americans of abuses by the king and raised the tricky issue of just who exactly would be picking them. In the early nineteenth century, electing judges through partisan election was widely adopted as the best alternative to the appointive system.

Roscoe Pound
Roscoe Pound

It took little time for people to notice that judges elected by partisan election tended to be, well, partisan — more loyal to the machines that put them in power than the law. By the late 1800s states began experimenting with non-partisan elections, to mixed effect. In most cases, powerful party machines still managed to ensure a favorable outcome by controlling the selection process.

By the early 20th century, a movement began to ensure a fair and impartial judiciary. Reformers reasoned that popular faith in the impartiality of judges was necessary for the survival of the republic. Roscoe Pound, a leading proponent of reform, delivered an influential address on the subject in 1906, "The Causes of Popular Dissatisfaction with the Administration of Justice."

These reformers pushed for a "merit" plan for selecting judges. In a merit plan, the pool of possible judges is extended beyond political inner circles and selectors consider only merit when elevating members of the bar to judgeships. In 1937, the American Bar Association endorsed a merit plan, and Missouri became the first state to adopt one in 1940.

Today
Merit plans, in one form or another, have spread to a majority of states. However, nearly every state has a unique combination of systems for selecting judges, often employing different methods for different levels of the judiciary, and 30 states employ elections to select some of their judges.

(Sources: "The New Politics of Judicial Elections 2002-2006" and "Judicial selection in the United States: a special report" by Larry C. Berkson, updated by Rachel Caulfield.)

Published on January 25, 2008.

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References and Reading:
Judicial Selection

"Judicial selection in the United States: a special report"
Download Larry C. Berkson's more detailed report on the history and current state of judicial selection in the United States.

American Judicature Society's Judicial Selection Web site
Find out how your state selects judges at this comprehensive Web site. Topics covered include methods of selecting, retaining, and removing of judges; successful and unsuccessful reform efforts; the roles of parties, interest groups, and professional organizations in selecting judges; and the diversity of the bench.

"The Causes of Popular Dissatisfaction with the Administration of Justice." Download Roscoe Pound's influential speech.

"The New Politics of Judicial Elections 2000-2006"
Read Justice at Stake's reports on state supreme court elections, co-authored with the Brennan Center for Justice at NYU and Institute for Money in State Politics.

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