Gradually, however, states began to adopt popular election as a means of choosing judges. For example, as early as 1812 Georgia amended its constitution to provide that judges of inferior courts be popularly elected. In 1816, Indiana entered the Union with a constitution that provided for the election of associate judges of the circuit court. Sixteen years later, Mississippi became the first state in which all judges were popularly elected. Michigan held elections for trial judges in 1836.

By that time the appointive system had come under serious attack. People resented the fact that property owners controlled the judiciary; they were determined to end this privilege of the upper class and ensure the popular sovereignty we describe as Jacksonian Democracy.

During the next decade, there was little opposition to those who advocated popular elections. For example, in the New York Constitutional Convention of 1846 there was not even a lengthy discussion of the subject. As one writer has stated:

The debates on an elective judiciary were brief; there was apparently little need to discuss the abuses of the appointive system, or its failures, or why election would be better. A few delegates argued cogently for the retention of the old system, and indeed forecast the possible evils if the judiciary fell under political domination .... But the spirit of reform carried the day.

New York’s adoption of an electoral system signaled the beginning of this trend. By the time of the Civil War, 24 of 34 states had established an elected judiciary with seven states adopting the system in 1850 alone. As new states were admitted to the Union, all of them adopted popular election of some or all judges, until the admission of Alaska in 1959.

Within a short time, however, it became apparent that this new system was no cure-all, and the need for reform again was recognized. For example, as early as 1853 delegates to the Massachusetts Constitutional Convention viewed the popular election of judges in New York as a failure and refused to adopt the system. One delegate claimed that it had “fallen hopelessly into the great cistern” and quoted an article in the Evening Post that illustrated that judges had become enmeshed in the “political mill”(5). By 1867, the subject was a matter of great debate in New York, and in 1873 a proposed amendment to return to the appointive system gained strong support at the general election.

One of the main concerns during this period was that judges were almost invariably selected by political machines and controlled by them. Judges were often perceived as corrupt and incompetent. The notion of a judiciary uncontrolled by special interests had simply not been realized. It was in this context that the concept of nonpartisan elections began to emerge.

The idea of judicial candidates appearing on the ballot without party label was used as early as 1873 in Cook County (Chicago), Illinois. Interestingly, it was the judges themselves who decided to run on a nonpartisan ballot rather than doing so pursuant to a statute or some other authority. Elections in 1885 and 1893 were also nonpartisan (Cook County subsequently returned to partisan elections). By the turn of the century, the idea of nonpartisan judicial elections had gained strength and several states had adopted the idea. By 1927, 12 states employed the nonpartisan idea.

Once again, criticism of nonpartisan elections arose soon after such elections began. As early as 1908 members of the South Dakota Bar Association indicated dissatisfaction with how such elections were working in their states. By 1927, Iowa, Kansas and Pennsylvania had already tried the plan and abandoned it. The major objection was that there was still no real public choice. New candidates for judgeships were regularly selected by party leaders and thrust upon an unknowledgeable electorate, which, without the guidance of party labels, was not able to make reasoned choices.

While others attacked nonpartisan elections, a number of well-known scholars, judges and concerned citizens began assailing all elective systems as failures. One of the most outspoken critics, Roscoe Pound, delivered a now classic address to the American Bar Association in 1906 on “The Causes of Popular Dissatisfaction with the Administration of Justice.” He claimed that “putting courts into politics, and compelling judges to become politicians in many jurisdictions... [had] almost destroyed the traditional respect for the bench.”

Several years later in a speech before the Cincinnati Bar Association, William Howard Taft claimed that it was “disgraceful” to see men campaigning for the state supreme court on the ground that their decisions would have a particular class flavor. It was “so shocking, and so out of keeping with the fixedness of moral principles,” he said, that it ought to be “condemned.”

Reformers claimed that the worst features of partisan politics could be eliminated through what they called a “merit plan” for selecting judges. The plan would expand the pool of candidates to include persons other than friends of politicians. Selectors would not consider inappropriate partisan factors such as an individual’s party affiliation, party service or friendship with an appointing executive, so the most distinguished members of the bar, regardless of party, could be elevated to the bench.

Origins of the plan are usually traced to Albert M. Kales, one of the founders of the American Judicature Society. Versions of his proposal were introduced in state legislatures throughout the 1930s. The American Bar Association endorsed a merit plan in 1937, and in 1940 Missouri became the first state to put one into effect. Today it is variously known as the Kales Plan, Missouri Plan, merit plan or commission plan.

Almost none of the state plans are identical, but they do share common features. Most include a permanent, nonpartisan commission composed of lawyers and nonlawyers (appointed by a variety of public and private officials) who actively recruit and screen prospective candidates. The commission then forwards a list of three to five qualified individuals to the executive, who must make an appointment from the list.

Usually the judge serves a one- or two-year probationary period, after which he or she must run unopposed on a retention ballot. The sole question on which the electorate votes is: “Shall Judge ______ be retained in office?” A judge must win a majority of the vote in order to serve a full term.

Today the combination of schemes used to select judges is almost endless. No two states are exactly alike and few employ the same method for choosing judges at all levels of their judiciary. It is possible, however, to classify the states by two categories: those that appoint their judges and those that elect them. The two groups turn out to be fairly equal in number.

Appointment: Thirty-four states use commission plans to aid the governor in selecting judges (24 states and the District of Columbia use panels for initial selection, and 10 others use them only for midterm vacancies). Since 1980, 17 states have adopted or extended a commission plan. [This article does not include the recent addition of New Hampshire.]

In three states – California, Maine, and New Jersey – the governor appoints judges without using a nominating commission (subject to senatorial confirmation in Maine and New Jersey). In Hawaii, Louisiana and Illinois, judges themselves appoint some of their colleagues. In Virginia, the legislature appoints all judges.

Elections: Partisan elections are held to select most or all judges in eight states and some judges in five other states. Nonpartisan elections are held to select most or all judges in 13 states and some judges in four states. Thus, 30 states choose some, most or all of their judges by elections.

Another way to examine how judges are chosen is to group the states by the plans they use for each level in their court system. Again, the states are fairly evenly divided between those that elect and those that appoint their judges.

Supreme courts: Twenty-one states hold elections for judges on courts of last resort: eight are partisan and 13 are nonpartisan. In 24 states and the District of Columbia, nominating commissions help governors appoint these judges; in four states, the governor acts on his or her own. The legislature appoints court of last resort judges in Virginia.

Appellate courts: Seventeen states (out of the 39 that have intermediate appellate courts) elect judges to these courts: seven use partisan elections and 10 use nonpartisan elections. In 19 of the other 22 states, governors utilize nominating commissions to help appoint these judges. In California and New Jersey, the governor makes appointments without the help of a commission; in Virginia the legislature appoints appellate judges.

Trial courts: Forty-seven states have a single court of general jurisdiction, and three states have two or more courts of general jurisdiction (Indiana, Louisiana, Michigan)(12). Thirteen states hold partisan elections and 17 hold nonpartisan elections to initially select judges for some or all general jurisdiction courts. Nineteen states and the District of Columbia use a nominating commission to aid the governor in appointing judges of some or all general jurisdiction courts. In New Jersey, the governor alone makes the choice. In California, local electors choose either gubernatorial appointment or nonpartisan election to select superior court judges. The legislature appoints these officials in Virginia.

This article originally appeared in Judicature, the journal of the American Judicature Society, Volume 64, Number 4, October 1980, pages 176-193, and was updated in January 1992 and February 1999. It is condensed from a larger study, “Judicial Selection in the United States: A Compendium of Provisions” (Chicago: American Judicature Society, 1980). Footnotes omitted.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer