49 Judicial Selection Processes
By the end of this section, you’ll be able to:
- Discuss the various methods of selecting judges
- Understand how Texas selects judges
- Understand arguments supporting and criticising partisan elections
- Evaluate alternative methods of selecting judges
Methods of judicial selection vary substantially across the United States. Though each state has a unique set of guidelines governing how they fill their state and local judiciaries, there are five main methods:
- Partisan elections: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
- Nonpartisan elections: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
- Legislative elections: Judges are selected by the state legislature.
- Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
- 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. After serving an initial term, the judge must be confirmed by the people in a yes-no retention election to continue serving.
- A retention election or judicial retention is a periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. The judge, who does not face an opponent, is removed from the position if a percentage of voters (often 50 percent) indicate that he or she should not be retained.
Texas’ Judicial Selection Process
Texas elects their judges (except at some of the municipal levels) in partisan elections, and the table below depicts the specifics for each level of court.
Arguments For and Against Partisan Elections
Arguments supporting partisan elections
Proponents of judicial elections argue that this method of selection is the most democratic, allowing the people to have a direct voice in selecting judges. They believe voters are capable of selecting a judiciary that reflects their values and that they are entitled to that choice.
“ [Y]ou cannot take the politics out of decisions about who is going to hold what office, but you can take the people out of the politics. This democracy business can be a little messy at times, certainly inefficient and occasionally some bad mistakes are made, but you can trust [voters] to get it right most of the time.”
—Professor Michael E. DeBow of the Samford University School of Law
Along similar lines, those in favor of elections say that the prospect of being voted out of office holds judges accountable to voters. Samford University law professor Michael E. DeBow points to examples from the late 1990s when judiciaries in Texas and Alabama appeared to be heavily inclined towards trial lawyers. When voters caught wind of this, they began what DeBow calls a “revolt,” replacing their judges and moving towards tort reform laws.
“Could this have happened in Missouri Plan states? Or in states with nonpartisan elections? Probably not as quickly.… [I]t is a significant thing for voters to assert themselves as dramatically as they did in these two states. It strongly supports the view that voters are not incompetent to vote on judicial races, and lends aid and comfort to those working to effect legal reform.”
—Professor Michael E. DeBow of the Samford University School of Law
Another argument put forth by proponents of this selection method is that affiliating judicial candidates with a political party efficiently communicates the candidate’s values and ideologies to voters. Indeed, in their book The Politics of State Courts, political science professors Harry H. Stumpf and John H. Culver assert that, “In partisan [judicial] races, the political party label may give most voters all the information they seek.”
Furthermore, some argue that partisanship is unavoidable. Even in the assisted appointment method of judicial selection there arises something of a “subterranean process of bar and bench politics,” writes DeBow, one over which voters have little control.
Arguments criticising partisan elections
Critics of partisan judicial elections argue that the growing amount of fundraising in election campaigns gives special interest groups a foothold to manipulate the judiciary to their liking. Judicial elections have become much more expensive in the last decade—partisan elections more so, perhaps because state parties serve as “ready-built infrastructures for ‘bundling’ donations,” according to Billy Corriher of the Center for American Progress. Those skeptical of the process also claim that it creates a highly polarized judiciary made up of judges who are pressured to please their campaign supporters.
“I never felt so much like a hooker down by the bus station… as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote.”
—Ohio Supreme Court Senior Associate Justice Paul Pfeifer
Addressing the argument that party affiliation gives voters useful information about a judge’s values, Corriher believes voters actually understand very little about how partisanship plays into everyday decisions on the bench.
“If voters understood how a Republican judge differs from a Democratic one in the run-of-the-mill cases that occupy most of the courts’ time, then partisan identification might prove more useful. …
When voters think of judges’ political affiliation, they often think of cases involving controversial social issues, such as abortion or gay marriage, that garner a lot of media attention but constitute merely a fraction of a court’s rulings. But in the states that have seen the most judicial campaign cash, the campaign donors are not concerned with social issues. Instead, liberal judges are supported by trial lawyers who want to see judges protecting individuals’ right to sue wrongdoers; conservative judges are strongly backed by corporate interest groups that want judges who will uphold “tort reform” laws that limit lawsuits.”
—Billy Corriher, Director of Research for Legal Progress at the Center for American Progress
The Shepherd Study
A 2013 study by the American Constitution Society titled “Justice At Risk: An empirical analysis of campaign contributions and judicial decisions” examined the effects of campaign contributions on judicial behavior.
Independent researchers analyzed over 2,345 business-related state supreme court published opinions from 2010 to 2012, merging the dataset with over 175,000 campaign contribution records that occurred over that period. Information was also collected on the characteristics of individual justices, including ideology.
The findings were reported as follows:
- A significant relationship exists between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.
- The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.
- A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
- The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.
- There is a stronger relationship between business contributions and justices’ voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party.