The Increasing Politicization of Judicial Selection

Across the country, we are seeing continued attempts to challenge the judiciary’s independence and legitimacy. In 2025 alone, legislatures considered at least 117 bills seeking to curb the independence or powers of the courts, with 15 ultimately enacted. Judges have also been the targets of threats and harassment, including attacks directed at judges’ families. While individual attacks represent one form of pressure on judges, legislative efforts to alter the judiciary present a different, and more systemic, challenge. 

Legislative Trends Across the Nation 

Since 2025, a number of states have introduced legislation that attempts to change the way judges are selected and retained. 

One clear example is Kansas, which proposed a constitutional amendment to replace a merit-based nomination and gubernatorial appointment process for Supreme Court justices with partisan, statewide elections. Supporters framed the proposal as increasing voter choice and democratic accountability. Attorney General Kobach opined that voters should “reclaim” the right to choose justices from an “attorney-controlled” system. Kansas voters ultimately rejected the proposal by a wide margin in August 2026. 

In several other states, lawmakers have proposed changes that would give the legislature a greater role in judicial selection, reduce the role of independent judicial nominating commissions, or create new mechanisms for legislative oversight of judges.

For example, earlier this year, legislators in Missouri proposed a constitutional amendment that would eliminate the Nonpartisan Judicial Commission's role in recommending candidates for certain judicial vacancies, instead giving the Governor authority to appoint judges with the advice and consent of a legislative committee. While the proposal failed to pass the House before the 2026 legislative session ended, the rationale offered by its supporters reflected dissatisfaction with the existing judicial selection system. They characterized it as controlled by insiders—“foxes guarding the hen house”—and argued that a broader candidate pool would promote greater public accountability. 

Similarly, Oklahoma voters will consider a proposal to restructure the Judicial Nominating Commission in November 2026, which would eliminate the commission’s existing political-party balance requirement meant to safeguard the commission against undue political influence. 

In Utah, lawmakers considered proposals that would allow the Governor to appoint individuals who had not been nominated by the state's independent judicial nominating commission, increase the percentage vote required for judicial retention elections to the highest in the nation, and give the legislature a mechanism to initiate a special retention election—though, all proposals failed to gain enough support to pass the House. 

Wyoming lawmakers likewise proposed increasing legislative control over judicial nominations and requiring Senate confirmation of state supreme court justices. Like Utah, the proposal failed to advance. 

Notably, a citizen initiative on Montana’s November 2026 ballot pushes in the opposite direction, constitutionally preserving Montana's nonpartisan judicial election system. This proposal is apparently in response to a wave of failed 2025 legislation to increase legislative oversight of the judiciary and an enacted law that made it easier for political parties to financially support judicial candidates. This illustrates that some states are taking preventative measures against the increasing politicization of existing judicial elections. 

These legislative efforts differ in their details and outcomes, but all illustrate a broader push to leverage lawmakers’ authority over the judiciary. While judicial accountability is critical, and the public should have meaningful information about judicial performance, increasing legislative influence over an inherently independent, nonpartisan system is not the right approach. 

A Nonpartisan Judiciary is Essential to Democracy and the Rule of Law

These legislative efforts to increase political influence over the judiciary are a threat to our democracy. The rule of law depends on judicial independence—courts being able to make decisions based on evidence and established legal principles, not political trends or fundraising dollars. This is particularly important because judges are at times required to make decisions that are unpopular with voters, legislators, or political leaders. 

Judicial independence does not mean that judges should be insulated from legitimate criticism or accountability. Rather, it means ensuring that judges apply the law impartially, even if doing so is contrary to political trends. Striking this balance lies at the heart of our O’Connor Judicial Selection Plan. This plan recommends that nonpartisan, diverse judicial nominating commissions submit judicial nominees for selection by the governor. Then, rather than oversight from legislators, judges remain publicly accountable through regular performance evaluations and retention elections, where voters decide whether a judge remains on the bench based on objective, performance-based information. This approach promotes an independent and transparent judiciary.

Increasing Judicial Accountability Without Politicizing the Courts

The concerns voiced by proponents of these legislative measures do point to important principles—judicial transparency and accountability. Ultimately, this gets at the idea of public trust in judges upholding the rule of law. But improving public trust and accountability does not require increasing political influence in judicial selection or making judges more responsive to political interests. 

Our Judicial Performance Evaluation (JPE) work demonstrates another approach. Judicial performance evaluation is designed to hold judges accountable to meaningful standards while preserving judicial independence and integrity. Rather than evaluating judges based on whether they reached politically favored outcomes, JPE focuses on politically neutral qualities: judicial competence, impartiality, clarity of communication, judicial temperament, administrative capacity, and efforts to advance the justice system.

Our JPE 2.0 recommendations specifically recognize legitimate concerns about transparency and public trust. But instead of finding solutions in legislative oversight, the change should come from an institutional commitment within the courts themselves. IAALS’ recommendations call for evidence-based judicial evaluation criteria and ongoing input from all stakeholders, including judges, court users, and the public, on maintaining a rigorous, credible, and fair JPE process. These standards help maintain and support the judiciary’s trusted, foundational role in our democracy without jeopardizing the rule of law.