Chapter IV

Other States

The court systems in different states are organized in many different ways and can vary greatly by level (state, county, or municipal) and specialization. The selection method for judges can vary within a state. This section sets out information about how other states select judges for the courts most like those in Connecticut - a court of highest jurisdiction (Connecticut's Supreme Court); intermediate appellate courts (Appellate Court); and courts of general trial jurisdiction (Superior Court).

Historical development. In the early days of the United States, the U.S. Constitution established that federal judges would be appointed by the president with the advice and consent of the U.S. Senate. These judges were appointed for life, during good behavior. The original 13 states provided that judges would be appointed by either one or both houses of their legislatures or their governors. One writer notes:

The failure to provide for popular election for judges at either the federal or state level has been ascribed to the founding fathers' belief that the electorate at large was not capable of evaluating the professional qualifications of prospective judges.¹

In the early 1800s, during the Jacksonian era, states began to adopt the method of popular election for judges. Toward the latter half of the 1800s and into the early 1900s, the view emerged that judicial elections should be non-partisan instead of partisan, so states using the elective method began moving toward nonpartisan elections.

Concerned about the elective method, in 1914 a law professor, affiliated with the American Judicature Society, proposed a model in which the chief justice of a state's supreme court (assumed to be elected) would select and appoint judges from among nominees identified by a judicial "conference". In 1937, the American Bar Association endorsed a version of that model, generally referred to as a "merit selection plan," in which a state governor makes appointments from nominees presented by a nominating commission. A version of this model, adopted first by Missouri, also required "that an incumbent appointed under the plan run in a noncompetitive retention election following expiration of an initial probationary term and each subsequent term."

Typically, nominating commissions are made up of both lawyers and non-lawyers; some commissions include judicial representation.

Terms of office. Regardless of the method of selection, 47 states have a specific term of office for judges, unlike the federal judiciary to which judges are appointed for life during good behavior. The term lengths vary from four to 15 years. Sometimes within state judicial systems, the terms of office can vary depending on the court level involved. Only three states have life or to-age-70 terms: Massachusetts, Rhode Island, and New Hampshire.

Table IV-1 summarizes judicial selection methods in the 50 states. Categorizing judicial selection methods is always difficult because of the variation from one jurisdiction to another, and within jurisdictions. The table captures the process that affects the largest number of judges in a state, who work in courts that seem most similar to Connecticut's. The variation that exists in some states is not shown in the table. For example, New York is identified as a partisan election state because most New York state judges are elected. However, the judges on New York's highest court comparable to Connecticut's Supreme Court are appointed by the governor from a list of candidates screened by a commission, with the advice and consent of the state senate.

The table shows:

• in 20 states, commissions screen judicial candidates, and thereby limit the nominating or appointing authority (Methods 1-4);
• four of these states are similar to Connecticut in that the governor nominates or appoints, and either both houses or the senate must appoint or confirm (Method 1);
• in 13 of the states that use a commission, after the initial appointment by the governor, judges who seek reappointment stand for uncontested retention elections (Method 4);
• in 25 states, elections are the sole method to select judges either on a partisan or nonpartisan ballot (Methods 8-9); and
• in 38 states, popular election is used in some way for judicial selection purposes (Methods 4, 8-9).

¹ Comisky, The Judiciary - Selection, Compensation, Ethics, and Discipline, Quorum Books, 1987, pp.3-4

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