Elected, Appointed or the Missouri Plan, How the States Choose Their Judges

Every state has to answer a question the Founders also wrestled with: who watches the people who judge us, and who picks them? There are about as many answers as there are state capitals, and the differences are not trivia. They decide whether the judge who rules on your case ran a campaign, answered to a governor, passed a committee, or faced a yes-or-no question on a ballot nobody reads.

Let us define the question carefully, because the debate has two real values in it and a conservative should name both. The first is accountability: judges exercise real power, and in a republic power should answer to the people. The second is independence: a judge who must please a majority, a donor or a governor will eventually rule for the powerful instead of for the law. Every method of choosing judges is a bargain between those two goods. No system gets both for free.

Two claims before the table

One. Judges make law, at least at the edges. Conservatives rightly insist that a judge's job is to apply the text, not to write it. But even faithful judges choose between plausible readings, and state judges in particular develop the common law of contract and tort. If they have discretion, the way we choose them matters.

Two. No method is neutral. An election favors the candidate who can raise money or earn a party label. An appointment favors the governor's friends. A commission favors the lawyers who sit on it. Pick your poison on purpose.

The four systems side by side

Here is the landscape in four rows. Most states fit one of these patterns, and many mix them, using one method for the supreme court and another for trial judges.

That table is a map. Let us walk the ground.

Partisan elections

The partisan election is where the idea of popular accountability goes furthest. Beginning with Mississippi in 1832, and as Jacksonian ideas about democracy spread, many states moved from appointed judges to elected ones. The thought was American to the bone: if the people can choose the governor and the legislature, why not the court?

Texas is the best-known example, electing the justices of its Supreme Court and its Court of Criminal Appeals in partisan races. In states with party labels on the judicial ballot, the party label tells a voter something. It is a shortcut to a judicial philosophy, imperfect but real.

The critique is that judicial campaigns look like every other campaign. Candidates must raise money, often from lawyers and litigants who will appear before them. The Supreme Court of the United States took notice in Caperton v. A.T. Massey Coal Co. (2009), holding that the Due Process Clause required a West Virginia justice to step aside from a case where an executive had spent an extraordinary sum to help elect him while his company's appeal was pending. The Court called that an extreme case and the standard is demanding, but the lesson reached beyond West Virginia. When the people who fund a campaign come before the bench, the appearance of a bargain is toxic.

Conservatives have a deeper concern too. A judge who must stand for election every six or eight years has a reason to look over his shoulder at the next headline. The Founders took that threat seriously, which is why they gave federal judges tenure "during good Behaviour," a point we will return to.

Nonpartisan elections

Nonpartisan elections try to keep the democratic check and drop the party label. Wisconsin is a well-known example: candidates appear on the ballot without a party, and the contests are held in the spring. Michigan has a hybrid; the parties nominate Supreme Court candidates, but the names appear on the general-election ballot without labels.

The theory is respectable. A judge is not a legislator, and a party label may misdescribe the work. A nonpartisan ballot asks the voter to look at qualifications and record.

The practice is shakier. When the label disappears, the voter's shortcut disappears with it. In low-turnout races, many voters either skip the line or guess. Interest groups and outside spending then fill the gap, often with advertising that tells the voter which side a candidate is "really" on, which brings the party back in through the side door. Nonpartisan, in other words, sometimes means partisan with extra steps, like a diet that allows everything so long as you call it a salad.

There is also a constitutional footnote conservatives should know. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down a state rule that barred judicial candidates from announcing their views on disputed legal and political issues. Justice Scalia wrote the majority opinion, reasoning that if a state chooses to elect its judges it cannot then gag the candidates from speaking on the very issues that voters care about. In Williams-Yulee v. Florida Bar (2015), the Court allowed a state to prohibit judicial candidates from personally soliciting campaign contributions, a narrower rule that survived strict scrutiny. Together the cases say that states may elect judges, may not muzzle their speech, and may keep them from passing the hat in person.

Appointment with confirmation

The third system mirrors the federal Constitution. Article II, Section 2 gives the President the power to nominate and, "by and with the Advice and Consent of the Senate," to appoint judges of the Supreme Court. Federal judges hold their offices "during good Behaviour" under Article III, Section 1. Hamilton defended that arrangement in Federalist 78, writing that "nothing can contribute so much to its firmness and independence as permanency in office."

Several states follow that model in some form. New Jersey's governor appoints the justices of its supreme court with the consent of the state senate; a justice serves an initial seven-year term and, if reappointed, can serve until the mandatory retirement age of seventy. New York's Court of Appeals is filled by gubernatorial appointment with state senate confirmation. California's governor appoints supreme court justices, subject to confirmation by a commission, and the justices then face retention votes.

The case for this system is the case Hamilton made. A single, identifiable official makes the choice, and he can be blamed for it. A confirmation process puts the nominee's record in public view. And long or life-like tenure frees judges to rule against the powerful, including the governor who picked them.

The case against it is that a long-serving governor, or a long run of one party, can shape a bench for a generation, and that confirmation fights can turn a technical choice into a spectacle. Americans watched that happen at the federal level; see The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign for how a confirmation became a campaign.

The Missouri Plan

The fourth system is the most interesting because it was designed to split the difference. Missouri voters adopted it by initiative in 1940, after years of complaints that judges were being picked by machine politicians. The plan has three steps.

1. A nonpartisan commission screens the candidates. In Missouri the commission includes lawyers chosen by the bar, laypeople appointed by the governor, and a judge. It sends a short list, traditionally three names, to the governor.
2. The governor appoints from that list. The pool is limited, but the choice among finalists is the governor's.
3. The new judge faces a retention election after a term. Voters are asked one question: should this judge be retained? There is no opponent, just yes or no.

The idea, which spread to many states over the decades, was to take the campaign out of judicial selection while leaving a final say with the people. Merit selection, as supporters call it, tries to replace "who can raise money" with "who is qualified."

Here the debate becomes sharp, and the committee-room jokes write themselves, and conservatives are not all on one side. Critics note that the commissions can be dominated by members of the legal profession, who may favor candidates who share their outlook, and that the screening itself is a hidden politics, conducted in a room where the public cannot see the factors. Supporters answer that a commission screens for competence and temperament in a way a ballot cannot. They also say that the retention vote still lets voters remove a judge who goes off the rails.

The record on retention elections is the plan's weak spot. Retention votes usually return judges to the bench by wide margins. Voters have little information, and most simply vote yes. Whether that is a sign of satisfaction or inattention is a matter of dispute, but a check that is almost never used does not feel like much of a check. It is a smoke detector with the battery taken out, handsome on the ceiling and silent in a fire.

The strongest case for each, and a verdict

Let us steelman the opposing views one at a time, in terms their defenders would accept.

For elections: "A judge is a public official who exercises public power. In a self-governing republic, public power should answer to the public. Let the people judge the judges, and trust them to learn." That is a Jeffersonian and Jacksonian argument, and it carries real force.

For merit selection: "Courts decide the cases that the majority of the moment would rather not hear: the unpopular defendant, the minority claimant, the property owner against the state. A judge who must please a majority every few years will not rule against it. Screen for qualifications, remove the campaign and keep a final check."

For appointment: "Democratic accountability can run through the governor and the legislature, who are elected and who answer for their choices. That is the federal model and the Founders' model."

Now the verdict. The federal design is the best one, and the closer a state comes to it, the better. Here is why.

One. Judging is not representing. A legislator is supposed to reflect the wishes of his district. A judge is supposed to ignore them when the law says otherwise. Hamilton understood this, and Federalist 78 is the classic statement of it. A campaign trains a person to do the opposite of what the job requires.

Two. Accountability has to be real but indirect. Appointment by an elected governor and confirmation by an elected body give voters a way to hold someone responsible. If they dislike the judges, they punish the officials who picked them. That is accountability with a buffer, which is exactly the point.

Three. Money in judicial elections is a standing problem. Caperton showed how bad an extreme case can be, but the ordinary case matters too: lawyers who practice before the court fund the campaigns of the judges who rule on their cases. A system that avoids that has an edge.

Four. Merit selection has the right instinct and the wrong secrecy. If a state uses a commission, it should publish its criteria, its membership and its reasons, and the commission should include a real mix of people rather than a guild. Done well, it comes close to the federal model. Done badly, it is a club.

A fair-minded reader may disagree, and the states have the right to try each approach. That is federalism working, as described in State Supreme Courts Decide More of Your Life Than the Nine in Washington. A state that elects its judges is not violating the Constitution. It is making a different trade between two goods the Founders also weighed. But conservatives who value judicial restraint, and who want judges to be bound by the text, should be cautious about any system that rewards a judge for popularity.

What conservatives should do about it

Whatever system your state uses, you have a part in it. If your state elects judges, vote the whole ballot, including the judicial line, and read about the candidates first. Our guide, How to Research Your State's Judges Before You Vote in a Judicial Election, is a place to start. If your state appoints, learn who the governor has named, what the confirming body asked and what the nominee has written. If it uses a commission, find out who sits on it and how they are chosen. If retention votes appear on your ballot, look up the judges' records instead of voting yes by default.

And keep in mind how the federal system came about. Nine justices sit in Washington partly because the Founders wanted an accountable chooser and an independent bench, as Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? describes. The same idea, scaled down, is at work in your capital. The structure is not decoration. It is the answer to the question of who judges the judges.

The case in brief

1. States choose judges in four broad ways: partisan elections, nonpartisan elections, gubernatorial appointment with confirmation, and the Missouri Plan of 1940, which pairs a nominating commission with retention elections.
2. Each system trades accountability against independence, and none gets both for free.
3. Elections give direct accountability but invite money and pressure, as Caperton v. Massey (2009) showed, while the Court in White (2002) and Williams-Yulee (2015) set the speech and fundraising rules.
4. The federal model of appointment, confirmation and tenure during good behaviour, defended in Federalist 78, remains the best balance, and merit selection works only if its commissions are open and balanced.
5. Whatever your state does, the ballot, the confirmation hearing and the commission's membership are public things a citizen can read.

What you can do: look up how your state's supreme court justices were chosen, then read one page about the system on your state court's website before the next election.