Judicial Selection in the United States
Judges in the United States are selected through a variety of methods, from popular elections to appointment by chief executives, legislatures, or other judges. Some of these methods are more effective than others in assuring public confidence in the integrity and quality of our courts.
- To identify and promote models for choosing state and federal judges that promote and preserve fair, high quality, and trusted courts.
Through empirical analysis and recommendations, thought leadership, and substantive support, IAALS works to identify and promote models for choosing state and federal judges that emphasize qualifications and experience, limit political considerations and special interest influence, and provide transparency.
IAALS formerly housed this work under its Quality Judges Initiative until 2018.
Changes to existing processes for choosing, retaining, and evaluating judges are on the legislative agenda in states around the country. Lawmakers and fair courts advocates in a handful of states are working to replace politicized judicial selection systems with processes that better ensure judicial impartiality and accountability and public confidence in the courts. At the same time, in other states, lawmakers and special interests want to alter or abolish processes that achieve these goals.
With legal and empirical analysis and research-based recommendations, IAALS supports state efforts to promote and preserve fair, high quality, and trusted courts.
According to Article II of the United States Constitution, the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” most federal judges. In processes for selecting some of these federal judges, an additional component may be in place—one that resembles the judicial nominating commissions used in 33 states and the District of Columbia to choose state judges.
IAALS has conducted research on two such components:
- The federal judicial screening committees used by some U.S. Senators to vet potential judicial nominees and recommend individuals that the Senators might then submit to the White House; and
- The merit selection panels used by U.S. Court of Appeals judges in each circuit to screen applicants for bankruptcy judgeships and make recommendations regarding potential nominees.
- Non-Administrative Law Judges (Non-ALJs), who are executive branch adjudicators not governed by the Administrative Procedure Act.
Click here for information about Federal Judicial Screening Committees in place as of August 2017.
When Justice Sandra Day O’Connor retired from the U.S. Supreme Court in 2006, she committed herself to two things she cares passionately about: judicial independence and civics education. She began working on judicial independence at Georgetown Law School through the “Sandra Day O’Connor Project on the State of the Judiciary,” a series of conferences co-sponsored by the Aspen Institute in 2006 through 2009.
Through these conferences, various themes and conclusions emerged. With respect to independence of the judiciary, the conference proceedings reflected that fairness and impartiality may be at risk in state court systems, particularly with reference to the selection methods for those state court judges. A commission-based appointment and retention election system is far preferable to contested elections, because it protects fair and impartial courts, keeps politics out of the process, and lets voters hold judges accountable for their performance on the bench.
As her project at Georgetown Law School neared conclusion in 2010, Justice O’Connor wanted to take the next step and begin fostering change directly at the state level. On December 8, 2009, she launched the Quality Judges Initiative at IAALS. We are honored that Justice O’Connor chose to partner with us to continue her work on judicial selection through IAALS.
The O'Connor Advisory Committee concluded its work together in 2020.