There are two primary methods of judicial selection: election and appointment. Some states provide only for election of judges; most opt for a hybrid of elective and appointive positions. Currently, 33 states (including New York) and the District of Columbia choose at least some of their judges via the appointive process known as merit selection.
Election, of course, is just what it sounds like: Candidates run in partisan campaigns, and the voters choose their judges in ordinary elections. Those who favor elections argue that it is a democratic method; that the people are given a voice in the third branch of government; that the people are permitted to choose their own judicial “representatives”; and that judges will assume office based on the will of the majority, not based on nepotism or personal connections. Some also believe that election increases diversity on the bench.
Appointment, on the other hand, comes in various forms. It is conceivable that an appointive system could be what some observers call “one-person judicial selection” – in other words, a chief executive, such as a governor, county executive, or mayor, is granted the power to decide whom to appoint to the bench. While some appointive systems may indeed amount to little more than this, as a practical matter, some checks on the chief executive’s authority of appointment usually exist. One example is a requirement that the candidate chosen be confirmed by a legislative body. Another twist on the straight appointive system occurs in Virginia, where the state legislature appoints all judges.
Generally, however, appointive systems tend to be adaptations of what is known as “merit selection.” Merit selection usually involves either a two-step or a three-step process. In either process, the first step is virtually identical: A nominating commission evaluates candidates for the open position, identifies as “well-qualified” a prescribed number (or range) of candidates, and submits that list of candidates to the chief executive. In the most effective merit selection systems, this nominating commission is:
- nonpartisan (or bipartisan or multi-partisan, as the case may be);
- broadly based, comprising members from diverse backgrounds and including a number of non-lawyers; and
- composed of members appointed by a variety of sources (for example, the governor, each house of the legislature, the state administrative body of the courts, bar associations, law school deans, public interest and citizen groups, etc.).
In step two, the chief executive chooses the nominee from among the “short list” of candidates submitted by the nominating commission. In a true merit selection system, the chief executive is limited to the names on that list; to provide otherwise would reduce the nominating commission to a mere advisory body. Some jurisdictions that use merit selection stop the process at this point—although in many cases, the chief executive’s choice must be confirmed by, for example, the state senate.
Those jurisdictions that utilize a full-scale merit selection system proceed to step three: After the judge has served for a particular length of time (for example, a year), he or she must stand for “retention election.” Usually, judges run unopposed in retention elections, because the purpose is not to provide a partisan electoral forum for choosing a judge; rather, it is to present the voters with a referendum on the performance of a judge chosen on the basis of merit. By this means, the voters still have a voice in determining their judicial officers.