Judicial Selection: How judges make it to the bench

Judicial Selection Methods

States differ in how state court judges are selected.  There are three methods of judicial selection currently utilized by states:

  • Appointment
  • Elections
  • Merit selection

Each of these methods is discussed in more detail below.  There are advantages and disadvantages of each method, and advocates of these methods have long disagreed about the best method to select judges who are accountable and independent.

Appointment

The appointment of state judges occurs in two different ways:

  • Legislative elections, in which judges are selected by the state legislature; and
  • Gubernatorial appointment (appointment by the governor), sometimes requiring approval from the state legislature

With the appointment method of judicial selection, judges may be removed from their offices through the impeachment process.  

This method of judicial selection is based on the belief that appointing judges promotes impartiality and fairness in the judicial system because it allows the judiciary to remain free from political pressure and independent from the other branches of government.

Although judicial appointment is used to select federal judges, this method of judicial selection is not common among states. 

Elections

State judges may be directly elected by the people through either partisan elections, with labels designating party affiliation appearing alongside the candidate’s name on the ballot, or nonpartisan elections, in which judicial candidates are not associated with a party on the ballot. 

Elections are based on the belief that they promote accountability.  With judicial selection through elections, the people theoretically retain popular influence in the judiciary because they choose whether to elect or reelect a judicial candidate.  As we discussed at the beginning of the semester, popular influence is at the heart of democracy.  For this reason, many states use elections to select state judges in some or all of their state courts.

In judicial elections, judicial candidates must act as politicians and engage in fundraising and campaigning.

Merit selection

Merit selection (also known as the Missouri Plan) can be viewed as a hybrid of the appointment and election methods of judicial selection.  In merit systems, a panel develops and submits a list of judicial candidates to the governor, who then appoints judges from this list.  Once appointed, judges face periodic retention elections where the voters decide whether to retain or remove a judge.

The merit system attempts to balance the need for judicial independence with accountability and popular influence while removing the need for campaigning and fundraising.

Judicial Selection in Texas

With the exception of most municipal court judges (whose appointment is defined in individual city charters and typically involves appointment by the city council) and recess appointments to state courts made by the governor when a judicial position vacates between elections, judicial selection in Texas occurs through partisan elections. Although partisan elections are the primary mechanism for judicial appointment to most courts in Texas, a large number of judges initially reach the bench through recess appointments by the governor in non-election years. If the recess appointment occurs between legislative sessions, the judicial vacancy will be filled by the appointee until the next regular legislative session begins (January of odd-numbered years), at which time the vote on whether to confirm the recess appointment occurs.

Distrust in government and popular influence are two elements of political culture in Texas that have most profoundly shaped our state’s governmental institutions; the judicial branch is no exception.  Elections as a method of the selection of state judges align well with Texas political culture in that they remove the choice from the state and allow individuals to shape the state judicial system by deciding who will serve as a judge. 

Impediments to Popular Influence in Texas Judicial Elections

There are several impediments to the effectiveness of popular influence in Texas judicial elections.

Texas has what is known as the long ballot, which results from using elections as the method of appointment for most major political offices in the state.  In Texas, voters are tasked with making decisions regarding who should hold various legislative, executive, and judicial positions in local, county, and state government in addition to voting in support of opposition of propositions and constitutional amendments.  For Texas citizens, the cost of making informed decisions regarding all of the items that appear on a ballot in any given election cycle are very high.  As a result, straight-ticket voting is common practice in Texas.

Further complicating popular influence in Texas judicial elections is the incumbency advantage enjoyed by current officeholders during elections due to greater visibility, a proven record of public service, and often better access to resources. The incumbency advantage is robust in Texas.  The incumbency advantage does not only apply to judges who have previously been successful in a judicial election.  Most judges who enter their offices through recess appointments by the governor receive the majority vote in the next election cycle and continue to serve in these positions.  In this way, the Texas governor plays a role in shaping the judiciary.

Another factor that mitigates the role of popular influence in Texas judicial elections is the fact that judicial candidates often run opposed.

Outcomes of Texas Judicial Elections

In theory, Texas judges should be selected by voters based on their analyses of that candidate’s effectiveness.  In reality, the outcome of Texas judicial elections are based in large part on two factors:

  • Party affiliation – voters in Texas tend to vote along party lines, which is complicated by the fact that Texas allows straight-ticket voting in elections
  • Name recognition – voters choose a candidate based on familiarity with the candidate or previous recognition of a candidate’s name