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Chapter 9 What are the benefits and drawbacks of selecting judges

Chapter 9 What are the benefits and drawbacks of selecting judges

Chapter 9

What are the benefits and drawbacks of selecting judges through popular elections? Can a judge who considered herself or himself a Republican or Democrat render fair and impartial justice?

Chapter 10 

Should those accused of violent acts be subjected to preventive detention instead of bail, even though they have not been convicted of a crime? Is it fair to the victim to have his alleged attacker running around loose?

Chapter 11 

What are the arguments for and against three-strikes laws? Who is more persuasive, the supporters or the critics?



Selecting Judges

Many methods are used to select judges.17 In some jurisdictions, the governor appoints judges. It is common for the governor’s recommendations to be confirmed by the state senate, the governor’s council, a special confirmation committee, an executive council elected by the state assembly, or an elected review board. Some states employ a judicial nominating commission that submits names to the governor for approval.


TABLE 9.1 Judicial Salaries at a Glance


Mean Median Range

Chief, highest court $171,306 $167,210 $133,174 to 241,978

Associate justice, court of last resort 165,922 166,159 129,625 to 230,750

Judge, intermediate appellate courts 159,559 159,484 124,616 to 216,330

Judge, general jurisdiction trial courts 149,392 146,803 118,385 to 201,100

State court administrators 147,658 139,059 92,960 to 245,640

Source: National Center for State Courts, Survey of Judicial Salaries, Vol. 40, No. 2, January 2016, (accessed April 14, 2016).


Another form of judicial selection is popular election. In some jurisdictions, judges run as members of the Republican, Democratic, or other parties; in others, they run without party affiliation. In some states, partisan elections are used for selecting all general jurisdiction court judges. In other states, nonpartisan elections are used. A number of other states hold retention elections for judges who are appointed, usually a year or two after appointment. In some of these elections, judges run uncontested.18 Altogether, about 90 percent of state trial judges face elections of some type and at some time during their tenure on the bench. Elections are less common in the higher-level state courts. Only a handful of states have partisan elections for intermediate appellate court judges and supreme court justices.


Judicial elections are troubling to some because they involve partisan politics in a process to select people who must be nonpolitical and objective. The process itself has been tainted by charges of scandal—for example, when political parties insist that judicial candidates hire favored people or firms to run their campaigns or have them make contributions to the party to obtain an endorsement.19


Roy Moore, Chief Justice of the Alabama Supreme Court, speaks to guests at his election victory party in Montgomery. Known for fighting to display the Ten Commandments in a judicial building, Moore had also written to all 50 governors urging them to support a federal constitutional amendment defining marriage as between only a man and a woman. Should elected candidates for judicial office be permitted to run on partisan platforms?


To avoid this problem, a number of states have adopted some form of what is known as the Missouri Plan (a form of what has been called “merit selection”) to select appellate court judges. This plan consists of three parts: (1) a judicial nominating commission to nominate candidates for the bench, (2) an elected official (usually from the executive branch) to make appointments from the list submitted by the commission, and (3) subsequent nonpartisan and noncompetitive elections in which incumbent judges run on their records and voters can choose either to retain or to dismiss them.20


Missouri Plan

A method of judicial selection that combines a judicial nominating commission, executive appointment, and nonpartisan confirmation elections.


The quality of the judiciary is a concern. Although merit plans, screening committees, and popular elections are designed to ensure a competent judiciary, it has often been charged that many judicial appointments are made to pay off political debts or to reward cronies and loyal friends. Also not uncommon are charges that those desiring to be nominated for judgeships are required to make significant political contributions. For a review of judicial selection, see Concept Summary 9.1.


Judicial Alternatives

Increased judicial caseloads have prompted the use of alternatives to the traditional judge. For example, to expedite matters in civil cases, it has become common for both parties to agree to hire a retired judge or other neutral party and abide by his or her decision.


Other jurisdictions have created new quasi-judicial officers, such as referees or magistrates, to relieve the traditional judge of time-consuming responsibilities. The Magistrate Act of 1968 created a new type of judicial officer in the federal district co

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