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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.

Guidelines for Effective Gubernatorial Appointment

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 New Jersey
Massachusetts New Hampshire

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

California Massachusetts

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

Maine New Hampshire
Massachusetts 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 North Carolina
Arizona Ohio
Arkansas Oregon
California Pennsylvania
Indiana Texas
Kansas Virginia
Michigan Washington
Mississippi Wisconsin

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