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Selection of Judges

The method by which judges are selected in the United States has been the subject of debate that predates the Revolutionary War. The king of Great Britain selected colonial judges but retained considerable power over them. The colonists so resented this power that the Declaration of Independence includes the following statement in reference to injuries that the colonists endured: “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

The states initially adopted the appointment method for selecting judges. In the early 1800s, the states of Georgia and Indiana modified their laws so that judges of lower courts were selected by popular election. Other states, including Michigan and Mississippi, also provided for selection by popular election by the 1830s. By the time the Civil War began, 24 of the 34 states elected their judges.

Election of judges lost some of its support after the Civil War. Critics charged that political machines had become responsible for the selection of judges like any other type of politician. Judges earned the reputation of being corrupt and incompetent. To combat this perception, a few states chose to elect judges based on nonpartisan elections where judges were not associated with political parties. The idea behind this option was that the parties could not control the judges, but in reality, the electorate had difficulty making decisions without the party labels attached to the judges.

The methods of judicial selection continued to be debated into the 20th century. Some organizations and individuals began to advocate for a method of selecting judges based on merit. Plans for merit selection of judges included provisions that would ensure that candidates would not be limited to friends of politicians, and that the merit of the prospective judge would be the primary factor in determining who could be a judge. Organizations such as the American Judicature Society and the American Bar Association endorsed such plans.

The method judicial selection varies considerably now from state to state. Methods for retaining judges after their initial term has expired likewise vary among the states.

Inside Selection of Judges