The judicial nominating commission is the key to commission-based appointment, or “merit selection,” of state court judges. 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.
With the judicial nominating commission as the initial and, indeed, essential component of the O’Connor Judicial Selection Plan, IAALS has undertaken extensive work in this area and offer three main published resources:
- Choosing Judges: Judicial Nominating Commissions and the Selection of Supreme Court Justices is a detailed report on why states adopted merit selection in the first place, how the structure and operation of nominating commissions differ across the country, and what some of the best practices appear to be in building public trust in the process.
- Goals and Principles for Judicial Nominating Commissions was developed in consultation with our O’Connor Advisory Committee to identify broad-based goals and principles that provide a framework within which to establish a commission-based appointment process tailored to individual states.
- Model Code of Conduct for Judicial Nominating Commissioners was developed in consultation with a working group of judges, lawyer and non-lawyer nominating commission members, and commission staffers to provide model rules with accompanying commentary that address the ethical responsibilities and obligations of judicial nominating commissioners.
Guidelines for Effective Judicial Nominating Commissions:
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 currently used in 30 states and the District of Columbia to choose judges, and while their selection, composition, and operation vary widely from state to state, these commissions are dedicated to achieving the same goals: ensuring a highly qualified judiciary, promoting public trust in that judiciary, and securing support for the judicial branch from the other two branches.
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:
|District of Columbia||Vermont|
In 11 states, nominating commissions are used in selecting some judges, depending on the court on which they serve:
In 7 states that use contested elections to select judges, a commission-based gubernatorial appointment process is used only in filling vacancies that occur between elections:
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: