Assisted appointment (Hybrid)
| Methods of judicial selection |
|---|
 |
| Election methods |
| Partisan election |
| Nonpartisan election |
| Michigan method |
| Retention election |
| Assisted appointment |
| Assisted appointment |
| Bar-controlled commission |
| Governor-controlled commission |
| Hybrid commission |
| Direct appointment |
| Court appointment |
| Gubernatorial appointment |
| Legislative election |
| Municipal government selection |
The hybrid type of assisted appointment is defined by the judicial nominating commission having no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control. This is in contrast to the other types of assisted appointment (Bar-controlled commission and governor-controlled commission) where either the governor or the state bar association selects a majority of the commission's members.
As of April 2024, eight states—Alaska, Hawaii, Indiana, Nebraska, New York, Oklahoma, South Dakota, and Wyoming—used this type of assisted appointment at the state supreme court level.
Other methods of judicial selection include: gubernatorial appointment, partisan and nonpartisan elections, the Michigan method, court appointment, municipal government selection, and legislative elections. To read more about how these selection methods are used across the country, click here.
How assisted appointment works
Assisted appointment is a method of judicial selection in which a nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list.[1]
At the state supreme court level, this method is further divided into the following three types, based on the makeup of the judicial nominating commissions. Those types are:
- Governor-controlled commission - The governor is either responsible for appointing a majority of the members of the nominating commission or may decline to appoint a candidate from a list provided by the nominating commission.
- Bar-controlled commission - The state Bar Association is responsible for appointing a majority of the members of the nominating commission.
- Hybrid - There is no majority of members chosen by either the governor or the state Bar Association. The membership of these commissions is determined by different rules in each state.
Twenty-two courts in 22 states used assisted appointment to select state supreme court justices as of June 2021.[2][3] The table below shows the number of courts using each variation of assisted appointment at the state supreme court level.
| Assisted appointment methods in state supreme courts | |||
|---|---|---|---|
| Method | Courts (of 23) | ||
| Governor-controlled majority | 10 | ||
| Bar-controlled majority | 1 | ||
| Hybrid | 12 | ||
States using this method
State supreme courts
At the state supreme court level, the following states use this selection method: Alaska, Indiana, Missouri, Nebraska, New York, Oklahoma, South Dakota, Vermont, and Wyoming.
The map below highlights selection methods in state supreme courts across the country.
The chart below details selection methods in state supreme courts across the country.
| Judicial selection methods in state supreme courts | ||||||
|---|---|---|---|---|---|---|
| Partisan election | Nonpartisan election | Gubernatorial appointment | Legislative election | Michigan method | Assisted appointment | |
|
|
|
|
|
| |
| Total: 8 states | Total: 13 states | Total: 5 states | Total: 2 states | Total: 1 state | Total: 21 states & D.C. | |
Arguments in support of assisted appointment
In a paper published in 2018 by the Brennan Center for Justice titled Choosing State Judges: A Plan for Reform, author Alicia Bannon wrote:[4]
| “ | Moreover, an analysis of the backgrounds of supreme court justices found that states using nominating commissions are less likely to have justices with ties to major political offices (such as former aides to the governor or state legislators) than states using an appointment system without nominating commissions, suggesting that nominating commissions do constrain the governor in appointing political allies.
Nominating commissions are particularly important because judicial appointments have often been used as a reward for political insiders and donors. History provides many colorful examples, such as the Kansas “triple play” in 1956, where the governor retired days before the end of his term so he could be appointed by his lieutenant to a vacancy on the state supreme court — a move that prompted the state’s adopting merit selection. Without a robust nominating commission, appointment systems are likely to remain a playground for patronage politics.[5] |
” |
In an article published in November 2012 by the Center for American Progress Action Fund titled Merit Selection and Retention Elections Keep Judges Out of Politics, Billy Corriher wrote:[6]
| “ | This brief argues that, despite this risk, merit selection and retention elections offer a far better alternative to contested elections. Judges must be independent from political pressure so they can vindicate constitutional rights without fear of political backlash. The judiciary is the only institution that can remedy violations of the constitution by the other branches of government. At the first step of the process, merit selection frees a potential judge from political influence by focusing on his or her qualifications, not on the ability to make deals with legislators or rake in campaign contributions. Retention elections, the second step of the process, subject judges to much less political pressure than contested elections and offer greater judicial independence. Although some recent retention elections have become politicized, these systems can provide the public with unbiased, neutral information on a judge’s qualifications and record. This allows voters to focus on merit and not on one or two politicized, high-profile cases.[5] | ” |
Arguments in opposition to assisted appointment
In a white paper released in January 2003 by The Federalist Society titled The Case for Judicial Appointments, the authors wrote:[7]
| “ | The Missouri Plan or "merit selection" offered the promise of combining the best features of the appointive system (high quality candidates) with the advantages of public accountability (through retention elections), and thus a means of reconciling the divergent goals suggested above. Unfortunately, as we have seen, it is not clear that the Missouri Plan has delivered on its promise. There seems to be no evidence that the Missouri Plan has led to the selection of judges of a particularly high caliber or particularly free from partisan or interest group ties. Indeed, perhaps the most important factor in what will happen under the Missouri Plan's merit system is who will be controlling the panels which will be forwarding names to the appointive authority.[5] | ” |
At his final State of the Judiciary Address in April of 2008, retiring Louisiana Supreme Court Chief Justice Pascal Calogero spoke against a potential switch from judicial elections to a different selection method. He said:[8]
| “ | My experience has been that the electorate, for the most part, has made wise and deliberate choices of those who are elected to serve in the state judiciary. Some have questioned whether our system of selecting judges by election is the optimal system, and it has been suggested that perhaps our elective system should be replaced with an appointive system. Of course, I am a product of the elective system, having faced the electorate on four separate occasions, including my first election in 1972. Nonetheless, I welcome this debate. However, such debate should be open, fair and straight-forward. We owe our citizens that much.
It has been said that an appointive system promotes judicial independence, whereas an elective system insures judicial accountability. Both systems have their advantages and disadvantages. My chief observation, however, is that if the right of the public to cast votes for their judges is to be taken away, then the decision to do so should be made based on facts, rather than rumor or innuendo, and the debate should be deliberate and considered. I am also concerned that replacing an elective system with a “selection” or appointive system only takes away the choice from the people and places it in the hands of a few; it does not in any way remove the politics from the process, as some have argued.[5] |
” |
Judicial selection methods
Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:
Election
- Partisan election: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
- Nonpartisan election: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
- Michigan method: State supreme court justices are selected through nonpartisan elections preceded by either partisan primaries or conventions.
- Retention election: A periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. Judges are not selected for initial terms in office using this election method.
Assisted appointment
- Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list.[1] At the state supreme court level, this method is further divided into the following three types:
- Bar-controlled commission: The state Bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
- Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
- Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control.
Direct appointment
- Court appointment: Judges are selected by judges in the state judiciary.
- Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
- Legislative election: Judges are selected by the state legislature.
- Municipal government selection: Judges are selected by the governing body of their municipality.
Brief history of judicial selection
At the founding of the United States, all states selected judges through either gubernatorial or legislative appointments.[4] In 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a national shift occurred as states joined them. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that achieved statehood after the Civil War provided for the election of some—if not all—of its judges.[9][10]
Scholars attribute the move toward judicial elections to a variety of factors, including:
- concern over an independent judiciary, especially after Marbury v. Madison established the judiciary's power as equal to that of the executive and legislative branches,
- imitation by the states,
- belief that judges at a local level should be accountable and responsive to their communities, and
- the growing popularity of Jacksonian ideals, which elevated the voice of the average American.[10]
Initially, all judicial elections were partisan. But as time went on, public trust in elected judiciaries wavered, and citizens who viewed the courts as overrun by machine politics began looking for alternative methods. Groups such as the Progressives, the American Bar Association, and the American Judicature Society led an effort to restore what they called "the traditional respect for the bench," which they said had been lost.[10]
One other popular selection method was the nonpartisan election of judges, first implemented by Cook County, Illinois in 1873. By not including party affiliation on the ballot, supporters argued, divisive partisan interests would find no footing in state and local selection processes.[10]
| “ | Since judges are supposed to be “above politics,” this reform was particularly popular regarding judicial selection. Nonpartisan judicial elections were perceived as a way to clean up corruption and cronyism in the judicial selection process while still keeping judges accountable to the people.[10][5] | ” |
| —Associate Professor Matthew J. Streb of Northern Illinois University | ||
Though states continued to experiment with selection methods throughout the next century, the methods of legislative elections and direct gubernatorial appointments did not see a return. No state that achieved statehood after 1847 had an original constitution calling for these methods except Hawaii, whose judges were initially chosen by gubernatorial appointment with senate consent.[9]
By 1927, 12 states selected judges in nonpartisan elections. Critics claimed that as long as judges had to campaign for office, politics would still play a role. Other critics questioned whether citizens would be able to cast informed ballots in nonpartisan judicial elections, offering the assumption being that party affiliation communicates a candidate's values in an easy shorthand. Three states that had experimented with nonpartisan elections switched back to partisan ones by 1927.[10]
Out of these concerns arose a third kind of election, the retention election, which the American Judicature Society argued encapsulates the positive aspects of each selection system. Retention elections were meant to work within the assisted appointment method to give judges relief from campaigning against an opponent while also giving voters the power to remove those judges from office if necessary. In 1940, Missouri became the first state to adopt the assisted appointment method as we know it today, and since then more than thirty states followed suit, using some form of retention elections at some level of their judiciary.[10][11]
See also
External links
Footnotes
- ↑ 1.0 1.1 American Bar Association, "Judicial Selection: The Process of Choosing Judges," June 2008 Cite error: Invalid
<ref>tag; name "ambaroverview" defined multiple times with different content - ↑ As of June 2021, Oklahoma had two state supreme courts: one for civil matters and one for criminal matters.
- ↑ North Dakota uses this method only for vacancies.
- ↑ 4.0 4.1 Brennan Center for Justice, "Choosing State Judges: A Plan for Reform," accessed June 23, 2021 Cite error: Invalid
<ref>tag; name "brennancj" defined multiple times with different content - ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Center for American Progress Action Fund, "Merit Selection and Retention Elections Keep Judges Out of Politics," November 1, 2021
- ↑ The Federalist Society, "The Case for Judicial Appointments," January 1, 2003
- ↑ Louisiana Supreme Court, "2008 State of the Judiciary Address to the Joint Session of the House and Senate Louisiana Legislature," April 8, 2008
- ↑ 9.0 9.1 American Judicature Society, "History of Reform Efforts," archived October 2, 2014
- ↑ 10.0 10.1 10.2 10.3 10.4 10.5 10.6 NYU Press, "The Study of Judicial Elections," accessed December 27, 2014
- ↑ American Judicature Society, "Judicial Selection in the States: Appellate and General Jurisdiction Courts," 2013
| |||||||
