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Statue of Justice
Politics and Economy:
Choice in the Courts
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Selecting State Judges

NOW reported recently on the battle in Congress over nominations to the federal bench. But the fight over who sits on the bench starts at the state level. The question boils down to whether judges should be selected or elected. Some against judicial elections are concerned that the process of election will leave judges beholden to voters or campaign contributors. Others worry that the third branch of government will be left open to the sway of the times or that the very nature of "partisan" politics unfairly biases the court system. Proponents maintain that judges should reflect the opinion of the population and that the best way of gauging that opinion is through election.

According to legal scholars, this controversy began early in U.S. history. In FEDERALIST 78, Alexander Hamilton argued for the independence of judges — judges should be appointed to serve "during good behavior" and insulated from the political process so that they could be a check on the legislative and executive branches. Yet there was anger over King George III's complete control of judicial selection which led those creating the new government to compromise on the issue. Federal judges would be appointed by the president, but approved by the Congress.

The selection process for state judges remained a battlefield between who would chose them — the legislature, the governor or the electorate. Some states began electing judges during the 19th century. Writing new state constitutions, many states added provisions for electing judges. Historians variously attribute the change to the upswell of "popular democracy" in the Jacksonian Era and also to the very strength of the parties, for whom judgeships were powerful tools of policy and patronage.

During the Progressive Era another wave of concern over popular election of judges and the independence of those on the bench swept the nation. Some states began instituting nonpartisan elections. Another compromise was proposed. Under the Missouri Plan, also known as merit selection, judges are appointed to the bench initially and then must stand for re-election on a ballot that permits citizens to vote to retain or not retain the judge. Initially proposed in 1913, Missouri was the first state to adopt the practice in 1940. The next state to follow Missouri was Alaska in 1956. Over the next several decades, at least ten different states failed to get more than 50% of its voters to support "merit selection" when it appeared on the ballot.

Today there are a number of methods used for selecting judges: partisan election, nonpartisan election, the Missouri Plan, and merit selection by appointment or with a commission. According to the American Bar Association: "Five states initially select judges by appointment without a nominating commission. Fifteen states initially choose judges through merit selection with a nominating committee. Eight states choose their judges through partisan election. Thirteen states choose judges through nonpartisan election, and nine states choose their judges through merit selection combined with other methods."

The American Judicature Society published a 2004 report which crunched the numbers. "Of the 1,243 state appellate judges, 1,084, or 87 percent, stand for some form of election, and 659, or 53 percent, stand for contestable election. Of 8,489 trial court judges (general jurisdiction courts), 7,378, or 87 percent, stand for some form of election, and 6,560, or 77.3 percent, stand for some form of contestable election. However, the actual number of judges initially elected may be lower than these percentages suggest--many midterm elective judicial vacancies are filled by appointment before judges ever face voters at the polls."

Below you'll find links for further information on judicial selection, and from groups advocating a variety of selection programs. You can also find out how your state judges are selected with our State Court Map.

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