Judicial Selection

Nonpartisan Election (14)

Partisan Election (6)

Legislative Appointment (2)

Merit Selection Hybrid (9)

Merit Selection (16)

Gubernatorial Appointment (3)

Most Democratic

Least Democratic

Citizen Nominating Commission

Gubernatorial Selection

Legislative Confirmation

Retention Elections

Merit Selection Process (Standard)

Brian T. Fitzpatrick “The Politics of Merit Selection” (2009)

State bars dominate selection of attorney members

Attorneys dominate state merit commissions

Merit selection nominees thus more likely to reflect state bar preferences than larger state

population

How Democratic are Merit Selection Commissions?

State Total # of Members

# Lawyers

# Judges # Non-Lawyers

Minimum % Lawyers/Judges

TN 17 14 0 3 82FL 9 6-9 0 0-3 67MO 7 3 1 3 58IA 15 7 1 7 53UT 8 2-4 1 3-5 38HA 9 2-4 0 5-7 22

State % of Attorney members nominated by state bar

AK, AZ, IN, IA, KS, MO, NE, OK, SD, WY

100%

TN 86% (12 of 14)DC 50-67% (2 of 3-4)NM 50% FL 44-67% (4 of 6-9)DE 16% CO, CT, MA, NH, NY, RI, UT

0%

% of TN merit-plan nominees who voted in Democratic primaries vs % of votes received by

Democratic candidates in general elections

% of merit nominees who were Democrats in TN & MO by Governor’s political party

Democratic Governors

Republican Governors

Tennessee 82% 54%

Missouri 94% 72%

Reasons not to be overly concernedJudicial and commission self-selection.

Democrats more likely to self select towards government service.

Legislative confirmation.For regular appointments, legislative confirmation required. Makes ideologues less likely

Non-partisan nature of majority of cases.

State Bar Association

Gubernatorial Selection

Legislative Confirmation

Retention Elections

Kansas Variation on Missouri Plan

A Current Challenge to Merit Selection

Iowa Anger over same-sex marriage decision, active movement to punish justices through anti-retention vote

Result: All three judges lost their seats. Is this a proper use of retention

elections, or should they solely concern judicial competence?

California – A Hybrid SystemSupreme Court and Court of AppealsAppointed by Governor, Confirmed by

Commission on Judicial AppointmentsRetention election during next gubernatorial

election, with 12 year term

District CourtsNon partisan elections, 6 year terms, vacancies filled by gubernatorial appointment (most)

Selection Method and Diversity%, American Judicature Society, May 2008.

Legislative Appt

Nonpartisan Elect

Partisan Elections

Gubernatorial Appt

Merit Selection

0 5 10 15 20 25 30 35 40

MinoritiesWomen

Contributions to Candidates, 2000-2009, by type of election

State Supreme Court Election Independent Spending (2000-2009)

Business/ Republicans $26,262,977

Plaintiffs Attys/ Labor/ Democrats $11,912,300

Partisan v. Non-Partisan Elections

Chris Bonneau/ Melinda Gann Hall:Partisan elections cost more, BUTCitizens vote more actively given party cues

Spending: Partisan v. Non-Partisan

Arkansas switches partisan to non-partisan in 2000

North Carolina switches partisan to non-partisan in 2004

Avery v. State Farm (Illinois, 2004-5)State Farm has appeal of > $450 million

judgment pending before IL Sup Ct(2004) State Farm, affiliates, pro-business

groups spend $9.3 million to elect Lloyd Karmeier

Karmeier wins ‘04 election, calls funding “obscene,” yet declines to recuse from Avery

August 2005: Karmeier casts decisive vote to reverse on breach of claims valued