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Judicial Politics:
Different Methods of Electing Judges

Ryan Wiseman

 

 

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There are several different methods of electing judges to state courts across the United States. Here you will find what these different methods are, and which states use each method.

Methods of Electing Judges

When it comes to choosing judges within our state courts, there seem to be five different methods of doing so. What are these five different methods, and what are the differences in the five methods? I will list the five different methods of selecting judges, based on their popularity of use. It must be noted that there are several states that use more than one of these methods, in that since they have several court systems, some court systems within one state may use one method of selecting judges, and other court systems within the same state may use another method of selecting judges. My home state of Indiana uses three of these methods, depending on the court system and which county we are talking about – selection within my home state of Indiana is discussed in this article.

The Missouri Plan (The Appointment-Retention-Election Plan) – This plan, I think, is the most interesting. It is also known as merit selection through nominating commission. First, a committee, usually made up of laypeople, judges, and attorneys, looks around to see who the best candidates are, and probably interviews several possibilities, and based on those sessions, and further review of the candidates interviewed, recommends to the governor a few possibilities of who they think the choice should be to fill the judicial vacancy within the state courts. The governor, based on these recommendations, will then appoint one of those nominees to that judgeship. After a time of being in that position, the voters are then allowed to vote to either retain that appointment, or oust the judge, through a retention election. If they do expel the judge, which is really quite rare, the whole process starts anew. The length of time, or term, a judge retains his judgeship before the retention election, is different for each state, usually being between 1 year, as in Florida, or 15 years, as in the District of Columbia.

25 of our states use this method of selecting judges for judgeship for either all of their higher courts, or some of them. This includes Alaska; Arizona; Colorado; Connecticut; Delaware; District of Columbia*; the Supreme Court and District Court of Appeals in Florida; Hawaii*; the Supreme Court, Court of Appeals, and the Superior Courts in Lake and St. Joseph Counties in Indiana; Iowa; the Supreme Court, Courts of Appeals, and 17 districts of the District Court in Kansas; Maryland; Massachusetts; the Supreme Court, Court of Appeals, and Circuit Courts in Jackson, Clay, Platte, and St. Louis Counties in Missouri; Nebraska; New Hampshire*; New Mexico; the Court of Appeals and Appellate Division of the Supreme Court in New York; the Supreme Court, Court of Appeals, and Court of Criminal Appeals in Oklahoma; Rhode Island; the Supreme Court in South Dakota; the Supreme Court, Court of Appeals, and Court of Criminal Appeals in Tennessee; Utah; Vermont; and Wyoming.

(*)There are a few exceptions to these rules in a few states. The District of Columbia does not use retention elections to retain good judges like most of the other states within this category do, but instead reappoints judges through a judicial tenure commission. Hawaii judges are retained by being reappointed through the same nominating commission that originally nominated them. New Hampshire judges don’t have term limits and a retention election at all, but can have their judgeship if in good standing to age 70.

Nonpartisan Elections (Retention through Re-election) – In some states, the voters do get to choose the judges for different judicial positions, but the elections are nonpartisan – that is, the judges are not allowed to take any public partisan affiliation, and the voters choose among candidates without any party labels next to their name on the ballot. The retention of these judges is through re-election. Of course, in this case, just like in partisan-based judicial elections, the incumbent is the candidate most likely to get the vote. Most people don’t pay that much attention to judicial politics, and seem to not care that much; they just go ahead and vote for the incumbent, which, many times, is on the ballot unopposed. In some states, if a judge is on a ballot unopposed, state law requires that the vote then be a retention election, where the voters can choose to keep the judge or not.

There are 16 states that use this method in whole, or in part, of their judicial selection process. This includes Arkansas; the Superior Courts in Florida; Georgia; Idaho; the Circuit Court in Vanderburgh County, and Superior Courts in Allen and Vanderburgh Counties in Indiana; Kentucky; Minnesota; Mississippi; Montana; Nevada; North Carolina; North Dakota; the District Courts in Oklahoma; Oregon; Washington; and Wisconsin.

Partisan Elections (Retention through Re-election) – In many states, the means of electing judges is through partisan elections. For example, when you go to vote at your local polling place, you may have one or more spots on the ballot for a judge filling a certain position, and you may be able to choose between different candidates, perhaps one represents the Democratic Party, one represents the Republican Party, and one is an Independent, and you can vote for the one you think will do the best job, or like most people, just vote for the one that represents the political party you like the best, without looking into his or her merits. Retention of judges to their positions, like in nonpartisan elections, happens through an election process, this time with party politics.

14 states use partisan elections in whole, or in part, to fill judgeship positions. Eight states use partisan elections for all of their judgeship positions, whereas 6 states use them for only some positions. This includes Alabama; Illinois; the Circuit Courts except in Vanderburgh County, and the Superior Courts except in Allen, Lake, St. Joseph, and Vanderburgh Counties in Indiana; 14 districts of the District Court in Kansas; Louisiana; Michigan; the Circuit Courts in all counties except Jackson, Clay, Platte, and St. Louis Counties in Missouri; the Supreme Court and County Courts in New York; Ohio; Pennsylvania; the Circuit Courts in South Dakota; the Chancery Courts, Criminal Courts, Circuit Courts in Tennessee; Texas; and West Virginia. As you can see, the selection process known as The Missouri Plan isn’t used in the selection process for every judgeship position within Missouri. Ironically, and this is just my opinion, the judicial districts that are most known for their corruption are the ones that use partisan elections (I’m not going to say which!).

Appointment by Governors – Sometimes, the governor of a state chooses for himself who he thinks should fill a judicial vacancy, and appoints that person to that position. It is argued that this can allow for some of the politics to be taken out of judicial appointments, in that the governor, usually with the help of some aides, can usually figure out who has the best merits – the most skill in the courtroom, the most knowledge of the law concerning the cases dealt with in that particular appointment, the best judicial temperament, the cleanest history – all in all, the best qualifications. Voters, it is argued, don’t necessarily vote for a judicial candidate based on his merits and qualifications, but, when politics is involved, votes for the candidate from the party he or she likes the best.

There are only three states, though, that use this process, and all three of them use it for all of their judicial positions in their higher courts. The three states are California, Maine, and New Jersey. In California and Maine, there are retention elections, just like in the selection process known as the Missouri Plan. In New Jersey, however, there are no retention elections, but after a seven years term in their judgeship, judges are reappointed by the governor, with the advice and consent of the senate, to serve if in good standing to the age of 70.

Election by Legislatures – In some states, the legislatures choose the person who fills in a judicial opening. The legislatures, in this case, could possibly form committees, select possible candidates, and ask them questions before a committee hearing, narrowing down the candidates to a list of three. They then narrow the candidates down to one through a voting process. When they get down to one candidate, they will usually have a vote on the floor, and see if enough votes are cast in the candidate’s favor to give him the vacancy. These rules vary somewhat; each state relies on rules that are written in that state’s constitution. If he or she gets enough votes, then they will get the vacancy; if he or she doesn’t get enough votes, they will go through the whole process again, perhaps bringing back candidates that were eliminated in the previous round.

Only two states use this selection process – South Carolina and Virginia. In South Carolina, a judicial merit selection commission first screens the candidates, and then sends to the General Assembly the names of three top nominees. Both Houses of the General Assembly then meet in joint session, and whoever of the three candidates gets the majority of the votes (over 50%) of the joint session, that person gets the judgeship. After a six year term, the legislature in South Carolina then votes on whether to retain the person for the judgeship. In Virginia, the legislature appoints people to the judgeships, without any nominating commission, and after a twelve year term, will vote on whether to retain that person for that judgeship or not.

Conclusion

These are the different methods of acquiring judges as found in all states. As you see, there is not any uniform method of determining who a state's judges are. Every state is different. Even in individual states, the process is not uniform across the entire state, which you can see in my home state of Indiana, as well as Kansas and Missouri. You also see that in each individual state, the method of determining judges can be different for each court system, whether the state's supreme court, their distric courts, or circuit courts. All in all, you see the five methods at work.




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