University of Denver

The O'Connor Judicial Selection Plan

IAALS and U.S. Supreme Court Justice Sandra Day O’Connor (Ret.) have identified a model for choosing, evaluating, and retaining judges that balances the need for fair and impartial courts with the need for public accountability and transparency.

Executive Director
Executive Assistant to Rebecca Love Kourlis

Objective:

  • To offer a research-based process for ensuring the best judicial candidates are selected and retained.

The O’Connor Judicial Selection Plan consists of four elements:

  1. Judicial nominating commission
  2. Gubernatorial appointment
  3. Judicial performance evaluation
  4. Retention elections

IAALS offers research-based recommendations for structuring each stage of the process to encourage highly qualified individuals to apply for judgeships, assure that the best judicial candidates are selected and retained, and engender support for the judiciary from the other two branches of government. Click here to download the plan.

IAALS formerly housed this work under its Quality Judges Initiative until 2018.

Publications 
IAALS has a deep and abiding interest in protecting the quality and integrity of the judiciary. With the assistance of Justice Sandra Day O'Connor (Ret.), and based upon IAALS’ independent research...

Whenever a vacancy occurs on the bench, judicial nominating commissions should be the screening entity that accepts applications from potential judicial candidates and identifies a list of finalists for the Governor. Structure and composition of the commissions must provide a climate that fosters public confidence in the process while encouraging highly qualified candidates to apply. They must not be a political or partisan entity and should be representative of the community to be served by the judge.

Our recommendations for the elements that comprise an effective nominating commission are taken primarily from existing nominating commission processes that we offer as better practices:

  • To ensure the stability of the process, nominating commissions should be constitutionally based.
  • The number of nominating commissions in a state may vary, but at the very least, there should be an appellate nominating commission and one or more trial court nominating commissions.
  • Multiple appointing authorities should select nominating commission members. This bolsters public confidence in the commission’s independence by making it less likely that a majority of the members will be appointed by a single entity.
  • In order to assure that the public viewpoint is well represented, a nominating commission should include a majority of non-attorney members who have a range of professional backgrounds and personal experience. Nominating commissions must not be viewed as captive to attorney groups.
  • Nominating commissions should be balanced politically, ideologically, and demographically. Race/ethnic, gender, and geographical diversity among commission members should be encouraged, if not required.
  • Members of nominating commissions must receive training so that they understand their role, and the role, responsibilities, and duties of judicial officers.
  • Nominating commission proceedings should reflect openness and transparency, carefully balancing the applicants’ need for confidentiality with the public’s right to know.
  • The respective terms of commission members should be staggered so that no one leadership group has a predominant voice. Staggered terms also prevent complete turnover in the commission’s membership, which provides new members with the benefit of existing members’ experience and ensures rotation among appointing authorities.
  • There should be a default provision in place should the nominating commission fail to act.

States with Judicial Nominating Commissions

Nominating commissions are used in selecting at least some judges in 29 states and the District of Columbia. Not all states with nominating commissions adopt all four elements of the O'Connor Plan.

  • For more about the legal authority behind the nominating commissions used to select supreme court justices, click here.
  • For more about the members of the nominating commissions used to select supreme court justices, click here.
  • For more about the transparency/openness of the nominating commissions used to select supreme court justices, click here.

In 12 states and the District of Columbia, nominating commissions are used in selecting all judges:

  • Alaska
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Iowa
  • Maryland
  • Nebraska
  • Rhode Island
  • Utah
  • Vermont
  • Wyoming

In 9 states, nominating commissions are used in selecting some judges, depending on the court on which they serve:

  • Arizona
  • Florida
  • Indiana
  • Kansas
  • Missouri
  • New York
  • Oklahoma
  • South Dakota
  • Tennessee

In 8 states that use contested elections to select judges, a commission-based gubernatorial appointment process is used only in filling vacancies that occur between elections:

  • Alabama
  • Idaho
  • Kentucky
  • Montana
  • Nevada
  • New Mexico
  • North Dakota
  • West Virginia

In at least 10 additional states, a commission advises the governor in making judicial appointments, but the governor is not required by law to appoint a commission-recommended candidate:

  • Georgia
  • Maine
  • Massachusetts
  • Minnesota
  • Mississippi
  • New Jersey
  • New Hampshire
  • Oregon
  • Pennsylvania
  • Wisconsin

For more information and resources about Judicial Nominating Commissions, visit our project page:

The judicial nominating commission is the key to commission-based appointment, or “merit selection,” of state court judges.

The sitting Governor is able to exercise his or her preference among the nominees identified and recommended by the Judicial Nominating Commission. That decision may, indeed, have partisan overtones because it is being made by an elected official who has a particular approach to judicial appointments. If the nominating commission has done its job, all nominees will be well qualified for the position.

It is important that the nominating process be honored and that the Governor’s choice be limited to nominees whose names come from that process. Furthermore, a finite time for the appointment is important so as to avoid the possible ‘limbo’ of nominations that stretch on indefinitely and become political bargaining chips. A finite time also assures that the nominees themselves are able to continue their practice, or their current position, with only a limited period of uncertainty. If the governor does not appoint one of the nominees within a certain period of time, another official (usually the chief justice of the state’s supreme court) is then authorized to appoint one of the nominees.

Accordingly, we recommend these three elements of the gubernatorial appointment process as better practices:

  • The Governor should be given an appropriately limited number of nominees for each position, and a limited time in which to make the appointment.
  • There should be a default provision in place should the Governor fail to act timely.
  • The Governor should not be allowed to make an appointment outside of the list of recommended nominees.

States with Gubernatorial Appointment

In many states, the governor appoints judges of at least some courts. In states that use the O’Connor Judicial Selection Plan, the governor makes the appointment from the list of candidates submitted by the judicial nominating commission.

In a handful of other states, the governor appoints judges at his or her own discretion, without input from a judicial nominating commission. The categories below belong to this group of states.

Judges of the court of last resort (usually a state supreme court) are always chosen this way in five states:

  • California
  • Massachusetts
  • Maine
  • New Jersey
  • New Hampshire

The governor always appoints intermediate appellate court judges in three of the 40 states that have such courts:

  • California
  • Kansas
  • Massachusetts

The governor always appoints judges of general jurisdiction trial courts in four states:

  • Maine
  • Massachusetts
  • New Hampshire
  • New Jersey

Appointment by the governor without input from a nominating commission is a process most often used in to fill vacancies in elective states that occur between elections or legislative sessions, and many judges in those states first come to the bench by this process. Midterm vacancies on at least some courts are filled via gubernatorial appointment in these states:

  • Alabama
  • Arizona
  • Arkansas
  • California
  • Indiana
  • Kansas
  • Michigan
  • Mississippi
  • Missouri
  • North Carolina
  • Ohio
  • Oregon
  • Pennsylvania
  • Texas
  • Virginia
  • Washington
  • Wisconsin

 

This is the point in the process where accountability plays a role. Most Americans undergo job evaluations, and there is no reason why judges should not do the same. On the other hand, the data must be broad and deep and the inquiries must be about procedural fairness, demeanor, and knowledge—not about particular outcomes in individual cases.

Judges are evaluated near the end of their term by people who have contact with and knowledge of their performance. Diverse groups of people who use the court system are surveyed, such as attorneys, litigants, jurors, witnesses, court employees, law enforcement officials, and victims. The survey asks about the clarity and impartiality of judges’ rulings, and the way judges manage their cases and interact with others.

A judicial performance evaluation commission reviews the surveys and writes a summary of the findings, rating how well judges perform their responsibilities and whether or not judges are recommended for retention. The evaluation is then made available to the public in a timely fashion before the retention election.

We offer these better practices as our recommendations for effective judicial performance evaluation:

  • Judicial Performance Evaluation (JPE) programs should be created by constitution or statute, rather than by a rule or directive.
  • JPE programs should publically disseminate regular evaluations of the performance of individual judges, based on criteria generally understood to be characteristics of a good judge:
    • Command of relevant substantive law and procedural rules
    • Impartiality and freedom from bias
    • Clarity of oral and written communications
    • Judicial temperament that demonstrates appropriate respect for everyone in the courtroom
    • Administrative skills, including competent docket management
    • Appropriate public outreach
  • JPE of appellate judges should include a process for evaluating the legal reasoning and analysis, fairness, and clarity of a selection of the judge’s written opinions, without regard to the particular outcomes reached.
  • Evaluations should be completed by people who have interacted with the judges in the courtroom and in the office.
  • The entity responsible for administrating the JPE process should be viewed as independent from other entities in performing its role. It should not be affiliated with the judicial branch.
  • Like judicial nominating commissions, the members of a judicial performance evaluation commission should be selected by multiple appointing authorities and be comprised of a majority of lay members. It should reflect diversity, be politically, ideologically, and geographically balanced, and the terms of its members should be staggered.
  • As part of JPE, judges should receive regular training. In addition to basic and broad judicial education, education programs should be tailored to the extent possible to the areas in which judges have been found wanting in their respective performance evaluations.

States with Judicial Performance Evaluation

Judicial performance evaluation exists in 17 states and the District of Columbia as an official program. Not all states with judicial performance evaluation adopt all four elements of the O'Connor Plan.

In 6 states, performance evaluation results are provided to voters for use in retention elections.

In 4 states and the District of Columbia, performance evaluation results are provided to those responsible for reappointing judges.

In 2 states, summary performance evaluation results (i.e., individual judges are not identified) are provided to the public to enhance confidence in the courts. 

In 5 states, performance evaluations are provided only to individual judges for the purpose of self-improvement.

For more information and resources about Judicial Performance Evaluation, visit our project page:

We are at the forefront of efforts to improve and expand programs for evaluating the performance of state and federal judges.

In retention elections, voters have their say about judges. We do not recommend that elections be contested and partisan, but we endorse the opportunity for citizens to make their choice. The compromise is a retention election in which the judges are "retained" in office or not on the basis of the vote of the electorate.

Citizens are asked to vote “yes” or “no” to keep a judge on the bench, based on his or her performance in the most recent term. Retention elections occur at regular intervals when a judge’s term is about to expire. Judicial performance evaluation (JPE) plays a crucial role in providing voters with objective and broad-based information about the judge’s performance—information that is often lacking in judicial elections, especially when they are highly politicized. While JPE has purpose in self-improvement and feedback to individual judges, its primary purpose is to allow voters to cast informed votes when the judges appear on their ballots. Judges removed by the voters are replaced by candidates who have been reviewed and recommended by the judicial nominating commission and appointed by the governor.

Because judges do not face opponents in retention elections, they usually do not need to raise money and conduct campaigns. At the same time, special interest groups are not as active in retention elections as they are in contested elections because a good judge’s performance speaks for itself. Although special interest groups can spend money to oust a judge they do not like, they cannot select a replacement who fits their particular agenda because the judicial nominating commission is tasked with selecting nominees to fill vacancies.

We recommend these elements of the retention election process as better practices:

  • Retention elections are the final, critical piece of a selection system that embraces the core judicial values listed above. Accountability of judges to the public is the pivotal part of this approach to judicial selection.
  • Judges do not run against opponents; they do not run on party lines; they do not (except in extraordinary circumstances) need to raise money or make stump speeches that may affect their impartiality or the appearance of impartiality.
  • However, they do need to stand for election before the public whom they serve.
  • That voter base must have ready access to the JPE information that allows each voter to cast an informed vote about the judge—based upon his or her actual performance on the bench.
  • In retention elections, judges stand for retention after a provisional term of two to three years. This allows for the collection of sufficient data about the judge’s performance.
  • Judges’ terms of office vary after that, so JPE data collection should be continuing and as frequent as possible to coincide with the judge’s respective term.

States with Retention Elections

In a retention election, judges run unopposed. Voters are asked whether the judge should be retained in office, and in most states, a simple majority vote is required for retention. In 15 such states, judges stand in retention elections for subsequent terms.

  • Alaska
  • Arizona
  • Colorado
  • Florida
  • Indiana
  • Iowa
  • Kansas
  • Maryland
  • Missouri
  • Nebraska
  • Oklahoma
  • South Dakota
  • Tennessee
  • Utah
  • Wyoming

In three states where judges are initially chosen in partisan elections, judges stand in retention elections for subsequent terms.

  • Illinois
  • New Mexico
  • Pennsylvania

In California, where the governor appoints all appellate court judges, and in Kansas, where the governor appoints intermediate appellate court judges, judges stand in retention elections for subsequent terms.

In Montana, if a judge seeking reelection is unopposed, s/he stands in a retention election instead.