The Ideological Consequences of Selection: A Nationwide Study of the Methods of Selecting Judges

How best to select judges has been the subject of great debate ever since the founding of the United States. Over the course of American history, four basic methods of selection have been tried (with some variations among them): appointment by elected officials, partisan election, nonpartisan election, and selection by a technocratic commission.' The first three methods will be familiar to most readers: gubernatorial or legislative appointment of judges, contested elections with party affiliation on the ballot, and contested elections without party affiliation on the ballot. But readers may be less familiar with the last method: many states today use unelected commissions often comprised largely of lawyers selected by the state bar to nominate judges to the governor, who must appoint one of the commission's nominees; in many of these states, the judges later run for retention only in a yes-no referendum with no opponent. Commentators and scholars have long debated which of these methods creates judiciaries with, for example, the greatest technical capabilities, the most independence and accountability, and the widest demographic diversity.