9.3 Selection of Judges and Justices: Appointment and Elections

Judges in the United States are selected in two very different ways depending on the court. Federal judges on Article III courts, including the Supreme Court, are nominated by the president and confirmed by the Senate, then serve for life. State judges reach the bench through one of five main routes: partisan elections, nonpartisan elections, merit-based nominating commissions, appointment by the governor, or selection by the legislature. The question of how judges are selected in the United States has no single answer because each state writes its own rules, and most states even use different methods for different levels of their courts.

How Federal Judges Are Chosen

Article II, Section 2 of the U.S. Constitution gives the president the power to “nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court, and all other Officers of the United States.”¹ That framework covers every Article III judge: Supreme Court justices, circuit court judges, and district court judges.

Confirmed Article III judges hold office “during good Behaviour.” In practice, that means a lifetime appointment. Their salaries cannot be reduced while they serve, and the only way to remove them is impeachment by the House followed by conviction in the Senate.² A judge does not have to be impeached before being prosecuted; courts have rejected that argument.³

What Presidents Weigh in a Nominee

Presidents have always factored legal philosophy into their picks, from Lincoln and Franklin Roosevelt down to recent administrations. Some have leaned harder on professional qualifications. Jimmy Carter set up nominating commissions designed to evaluate candidates on merit rather than political ties.⁴

Demographics increasingly figure in the choice too. President Biden confirmed 210 Article III judges, 86% of whom identified as female or people of color, and nominated Ketanji Brown Jackson, the first Black woman on the Supreme Court.⁵⁶ Reagan’s appointees were 94% white, George H.W. Bush’s 90%, and Trump’s first term 84%. As of August 2024, the sitting federal bench of 1,457 Article III judges was 67% male and 74% white, numbers that track the demographics of the legal profession more closely than those of the general population.

How Senate Confirmation Works

Once the president sends up a name, the nomination is referred to the Senate Judiciary Committee. The committee holds a hearing where the nominee testifies, then votes on whether to report the nomination to the full Senate.⁷ Public hearings are a modern layer on top of a constitutional process that doesn’t require them. The first open hearing for a Supreme Court nominee was held in 1916 for Louis Brandeis. Harlan Fiske Stone became the first nominee to appear in person before the committee in 1925, and since 1955, nearly every nominee has testified. Televised hearings date to 1981.¹

For lower-court nominations, home-state senators have long had unofficial influence through the “blue slip.” Since 1917, the Judiciary Committee chair has sent a blue piece of paper to each senator from the nominee’s home state asking for their opinion. The practice grew out of senatorial courtesy, the expectation that a president will consult the state’s senators before picking a judge who will sit there. How much a negative or unreturned slip actually blocks a nomination depends on the chair. Under James Eastland from 1956 to 1978, one negative slip was an absolute veto. Later chairs, including Joe Biden and Orrin Hatch, treated it as a serious signal rather than a bar, especially where the White House had consulted beforehand.⁸ Chairs have historically given the White House more latitude on circuit court picks than on district court ones.⁹

The confirmation vote itself used to require a 60-vote supermajority to end debate, which gave the minority party real leverage. That ended in two steps. In November 2013, Majority Leader Harry Reid triggered the “nuclear option,” eliminating the 60-vote threshold for all presidential nominees except Supreme Court justices. On April 6, 2017, Majority Leader Mitch McConnell extended the change to Supreme Court nominees after Democrats filibustered Neil Gorsuch, whose cloture vote had come up short at 55–45.¹⁰ A simple majority is now enough to confirm any federal judge.

Alongside the Senate process, the American Bar Association’s Standing Committee on the Federal Judiciary has evaluated federal nominees for more than 60 years, rating them “Well Qualified,” “Qualified,” or “Not Qualified.” The committee reviews integrity, competence, and judicial temperament, and says it excludes political affiliation and ideology from its assessment. Its process involves hundreds of confidential interviews and a review of the nominee’s legal writing by law professors and experienced practitioners, and the Judiciary Committee traditionally invites the ABA to testify as its first public witness.¹¹ Between 1990 and 2022, 12 Supreme Court nominees were rated; 11 were “Well Qualified.” The exception was Clarence Thomas in 1991, who received “Qualified” from a substantial majority of the committee with a minority rating him “Not Qualified.”¹²

Federal Judges Who Aren’t Appointed by the President

Not every federal judge comes through the president and the Senate. Magistrate judges are appointed by a majority vote of the district court judges they’ll serve, after being vetted by a merit panel of lawyers and non-lawyers; full-time magistrate judges serve eight-year renewable terms, part-time ones four years.¹³¹⁴ Administrative law judges, who preside over hearings inside executive agencies, are a separate category: after the Supreme Court held in Lucia v. SEC (2018) that ALJs are “officers of the United States” under the Appointments Clause, they have to be appointed by agency heads.¹⁵ Executive Order 13,843 then moved ALJ positions out of the competitive civil service, giving agencies the power to hire directly using their own criteria without an Office of Personnel Management examination.¹⁶

How State Judges Are Chosen

States don’t share a single system. Five methods are in use, and most states combine them: one approach for the trial courts, another for the appellate courts, sometimes a third for the state supreme court.

Partisan elections. Eight states choose their high court justices through contested elections with party labels on the ballot.¹⁷
Nonpartisan elections. Fourteen states use contested elections without party affiliations.¹⁷
Merit selection. Fourteen states use an independent nominating commission to screen candidates and give the governor a shortlist. The governor must appoint from that list, and the judges later face retention elections.¹⁷
Gubernatorial appointment. Ten states that don’t use contested or retention elections let the governor appoint, often with input from a judicial nominating commission.¹⁷
Legislative appointment. Virginia and South Carolina have their legislatures pick judges.¹⁷

Retention elections, used in 19 states, are a feature of merit systems. The ballot asks voters a yes-or-no question about whether a sitting judge should stay on for another term; no challenger runs. State tenure rules vary; Rhode Island is the only state where supreme court justices serve for life with no mandatory retirement age.¹⁷

The Missouri Plan

The Missouri Plan, written into the state’s constitution in 1940, is the template most merit-selection states have followed. A judicial nominating commission of citizens and lawyers evaluates candidates on character, experience, and legal skill. It sends three names to the governor for each vacancy, and the governor must pick one of the three. The commission’s seats are staggered so no single governor controls a majority.¹⁸

After appointment, a new judge stands for retention at the general election following the first 12 months on the bench, and again at the end of each subsequent term. A judge who fails to win a majority loses the seat, and the nominating process starts over.¹⁹ Judges in the system are barred from partisan politics, campaigning, and accepting campaign contributions.¹⁸

Elections vs. Appointment: The Live Debate

Each selection method answers the same tension differently: how to keep judges independent while still accountable to the public they serve. Supporters of partisan elections argue party labels give voters the most useful information available for a race most people know little about, and that voters can reform a judiciary they see as captured faster than any appointment system allows. Critics of merit selection make a similar accountability argument from the other direction: that it swaps electoral politics for behind-the-scenes committee politics dominated by the organized bar, and that empirical research shows no measurable improvement in judge quality over elected systems.²⁰

The counterargument runs through money. States with partisan elections or partisan nominating processes see significantly higher campaign spending, and party structures make it easy to bundle contributions from interest groups. Former Texas Chief Justice Wallace Jefferson has said the partisan system puts politics over merit, and other critics argue that fundraising itself undercuts public trust in courts.²¹

The numbers back up the concern. State supreme court races in the 2023–24 cycle drew $157.3 million in total spending, a 35% jump from 2019–20, and for the first time interest groups outspent the candidates, at 54% of all spending. Seven states set spending records, and a single 2023 Wisconsin Supreme Court race cost $51 million. A follow-up Wisconsin race in 2025 topped $100 million, the most expensive judicial election in U.S. history. Abortion drove much of the surge: 30% of TV ad spots in state supreme court races in 2023–24 mentioned abortion, up from 3% in 2020, and national groups including the ACLU, Planned Parenthood, Everytown for Gun Safety, and the Republican State Leadership Committee’s Judicial Fairness Initiative each spent over $1 million across multiple states.²² Pennsylvania’s 2025 supreme court retention elections drew at least $18.7 million, much of it from nonprofits whose donors aren’t disclosed.²³

Two Supreme Court Cases That Set the Rules

Two U.S. Supreme Court decisions frame what states can and can’t do about speech and money in judicial races. In Republican Party of Minnesota v. White (2002), the Court struck down 5–4 a Minnesota ethics rule that barred judicial candidates from announcing their views on disputed legal and political issues. Justice Scalia wrote that the First Amendment does not let a state keep judicial elections while preventing candidates from discussing the issues those elections are meant to resolve.²⁴ The ruling invalidated similar rules in nine states and triggered challenges to other judicial conduct standards.²⁵

Seven years later, Caperton v. A.T. Massey Coal Co. (2009) set the outer limit. Massey Coal’s CEO Don Blankenship spent about $3 million supporting Brent Benjamin’s election to the West Virginia Supreme Court of Appeals while a $50 million verdict against Massey was on appeal. Benjamin refused to recuse himself and cast the deciding vote to overturn the verdict. The Supreme Court reversed 5–4, holding that due process required recusal when campaign support creates a “serious risk of actual bias,” and pointing to the size of the contribution, its timing relative to the pending case, and its apparent effect on the election.²⁶

Together, those two cases describe the current ground rules for elected state judges: they may talk about contested legal issues as candidates, and the sums spent to put them on the bench can, at the extreme, require them to step aside from cases involving their biggest supporters.

1
Constitution Annotated. Appointments Clause
2
National Constitution Center. Article III, Section 1
3
Constitution Annotated. Impeachment of Federal Judges
4
Federal Judicial Center. Executive Role in Appointment of Federal Judges
5
American Bar Association. Profile of the Legal Profession – Judges
6
SCOTUSblog. In Historic First, Ketanji Brown Jackson Is Confirmed to Supreme Court
7
U.S. Senate. Judicial Nominations Overview
8
Every CRS Report. The History of the Blue Slip in the Senate Committee on the Judiciary
9
U.S. Senate Judiciary Committee. Grassley Speaks on the History of the Blue Slip Courtesy for Judicial Nominees
10
Politico. Senate Goes Nuclear, Clears Path for Gorsuch
11
American Bar Association. Supreme Court Evaluation Process
12
U.S. Congress. ABA Ratings for Supreme Court Nominees
13
U.S. Courts. Types of Federal Judges
14
Federal Judicial Center. Bankruptcy Judgeships
15
Administrative Conference of the United States. Agency Recruitment and Selection of Administrative Law Judges
16
GovInfo. Executive Order 13843
17
State Court Report. How Are State Judges Selected
18
Your Missouri Judges. How It Works
19
Your Missouri Judges. The Missouri Plan
20
Federalist Society. The Case for Partisan Judicial Elections
21
Center for American Progress. Partisan Judicial Elections and the Distorting Influence of Campaign Cash
22
Brennan Center for Justice. The Politics of Judicial Elections 2023-24
23
Spotlight PA. Pennsylvania Supreme Court Spending in Retention Elections
24
Justia. Republican Party of Minnesota v. White, 536 U.S. 765
25
First Amendment Encyclopedia. Republican Party of Minnesota v. White
26
Justia. Caperton v. A.T. Massey Coal Co., 556 U.S. 868