From the Executive Summary:
Systems for selecting state judges vary dramatically across the United States, comprising a complex range of elective and appointive mechanisms. Each of these systems has its advantages and disadvantages for important judicial values. For instance, popularly-elected judges may be more accountable to their state’s electorate, but that same accountability might cause them to impose harsh sentences on criminal defendants or otherwise disfavor unpopular litigants—especially as election season approaches.1 By examining how different state systems serve or disserve these values, it may be possible to distill broader recommendations to create a fairer and better judiciary.
This report, part of a broader investigation into judicial selection by the Brennan Center for Justice at New York University, surveys California’s method for selecting judges. California uses a unique hybrid system, combining elements of both the elective and appointive selection models. While California citizens do have the power to elect trial court judges in specific circumstances, the governor appoints the vast majority of judges at the superior (trial), intermediate appellate, and Supreme Court levels.
Focusing on California therefore makes sense: if this hybrid works well for California, it might offer the best of both worlds to other states. The report draws on public documents, state archives, and interviews with stakeholders throughout the California judicial community to assess the selection system’s performance in five key areas: quality, independence, accountability and legitimacy, public confidence, and diversity.
Before judges are appointed, they undergo a series of vetting processes including two judicial commissions. Unlike their counterparts in true “Missouri-plan” merit selection states, the California judicial commissions only consider candidates who have already been selected by the governor. The commissions do not select and present a slate of candidates to the governor; rather, the governor selects and presents a slate of candidates to the commissions for evaluation.
California adopted its judicial selection system in 1934 in an effort to increase the quality and independence of the state’s appellate courts. For the most part, the system has fulfilled these goals without excessive partisan political machinations or significant influence by special interest groups. However, the successful execution of the California judicial selection process does not appear to be due to the structure of the process. Indeed, the history of the system is marked by several examples illuminating the potential limits of the structural mechanisms of selection. Because the California judicial selection system’s relatively successful operation may depend on the state’s unique size, history, demographics, and politics, the system as a whole may not be suitable for adoption in other states.