Public debate on state judicial elections versus merit selection spans more than a century. The empirical evidence suggests there is no "best" system for selecting judges; all systems have advantages and disadvantages. The relative merit of the various systems depends on the goals we wish to maximize.
The scholarly debate about how to select state judges has been ongoing for decades; the public debate on the issue spans more than a century. Proponents on each side seem confident that their preferred method of judicial selection is the best. Reformers have argued that "judicial elections deserve the limelight in the variety show of threats to judicial independence."1 Defenders of judicial elections have countered that judicial reformers are "waging war on democratic processes and the rights of citizens to maintain control over government."2 The empirical evidence to date, however, has largely resulted in a draw. The more we learn about the actual performance of these systems, the more difficult it becomes to declare one or the other system the winner. The purpose of this article is not to settle this debate, but neither will I shy away from it. Instead, I discuss what we currently know about judicial selection in the American states and what it means for the future.
How States Choose Judges
At the heart of it, there are really just two main mechanisms for choosing and retaining judges: appointment and election.3 The large variety of systems in use in the American states comes from differences in who does the appointing or electing. This is important, of course, because the decisions judges make "reflect both the process by which the judges are chosen and the values of those who choose them."4 A place on the bench is a desirable job; a judgeship is one of the most secure political positions there is, and it is highly prestigious.5 Attorneys are also attracted to the bench by certain intangible benefits, such as the opportunity to reform the judicial system and a sense of personal and professional accomplishment.6 As a result, often there is a sizeable pool of attorneys interested in becoming judges. States need to determine how to select judges from this list of potential candidates.
Early on, most American states chose their judges through appointment by the governor or the legislature. The resulting judges often served for life. These appointment systems fell out of favor in the nineteenth century. Of those states that maintained appointive systems, the tenure of the judges was generally reduced to a relatively short term of office. In order to stay on the bench, judges needed to be reappointed by the legislature or the governor. Several states currently use appointive systems. Of these, many have instituted a judicial nomination committee to select and screen candidates for the bench. Some of these systems are statutory, while others are the result of executive orders enacted by governors.
By the middle of the nineteenth century, the populist sentiment associated with the Jacksonian Era led many states to abandon appointive systems in favor of partisan elections. These systems generally allow each political party to select its own candidate through a primary process. The candidates then square off against each other in contested elections, where the candidates are identified by party affiliation on the ballot. Although these partisan elections had the potential to be highly competitive and acrimonious, historically this was rarely the case. Partisan elections were generally relatively low-key affairs, with few candidates willing to take on incumbent judges.
Part of the impetus for the move to partisan elections was to give judges independence from the other branches of government. Many populist reformers were disappointed with the results of this reform. Instead of being beholden to the political elites who appointed them, these new elected judges were often beholden to the party bosses who essentially secured their positions. …