The merit plan for selecting judges is a method of putting judges on the bench through a three-stage process: a nonpartisan nominating commission screens applicants and sends a short list of the most qualified names to the governor, the governor appoints one of them, and after an initial term the judge faces voters in a yes-or-no retention election. Also called the Missouri Plan or the nonpartisan court plan, it was first adopted by Missouri voters in 1940 and is now used in some form by more than thirty states.1Ballotpedia. Judicial Selection in the States
How the Three Stages Work
Each stage is designed to limit what any single political actor can do.
Commission screening. When a judicial vacancy opens, a nominating commission reviews applicants. It evaluates legal experience, professional reputation, and integrity, then forwards a short list of the most qualified names to the governor.2The Fund For Modern Courts. Methods of Judicial Selection Commissions typically mix lawyers and non-lawyers, with the balance set by state law. Arizona gives non-lawyers a clear majority; Connecticut splits membership evenly.3IAALS. Composition of Judicial Nominating Commissions Members usually serve four-to-six-year staggered terms, which keeps any single governor from stacking the commission with loyalists.
Gubernatorial appointment. The governor must choose from the commission’s short list rather than picking anyone they want. Executive involvement is preserved, but the field has already been narrowed to candidates the commission considered qualified.
Retention election. After serving an initial term, the judge appears on the ballot alone. Voters answer a single question: should this judge continue in office? There is no opposing candidate, no party label, and no campaign against a challenger.4Ballotpedia. Retention Election
No single actor controls the outcome. The commission limits the governor’s choices, the governor makes the final pick from a vetted pool, and voters get the last word on whether the judge keeps the job.
What the Plan Was Built to Fix
The merit plan was a direct response to two selection methods reformers considered broken.
Partisan judicial elections forced candidates to behave like politicians. Judges had to campaign, raise money, and seek party endorsements, which created an obvious tension: a judge who owes campaign donors or party leaders a political debt faces pressure to rule in ways that keep those supporters happy, not in ways the law demands. Voters in low-turnout judicial races often chose based on party label or name recognition rather than qualifications.
Direct political appointment was not much better. In states where governors or legislatures picked judges unilaterally, the process often amounted to patronage. Appointees were chosen for political loyalty or personal connections, with no structured screening and little public transparency. A judge who owed their seat to a governor’s favor faced many of the same independence problems as an elected judge beholden to donors.
The most immediate trigger for reform was Tom Pendergast’s political machine, which effectively controlled who became a judge in 1930s Missouri.5IAALS. Missouri Plan Celebrates 75 Years In November 1940, Missouri voters approved Amendment 3, establishing the nonpartisan method for nominating, appointing, and retaining judges.6Ballotpedia. Missouri Amendment 3, Nonpartisan Judicial Selection Initiative (1940) When the state legislature tried to repeal it two years later, voters reaffirmed it at the ballot box.7Missouri Judicial Evaluations. The Missouri Plan
How States Apply the Plan Differently
The merit plan is less a single system than a family of related approaches built around the same core idea. The details vary.
Many states use merit selection only for appellate courts, or only for trial courts in certain counties, while lower courts or rural districts still hold contested elections. Arizona, for example, uses merit selection for its supreme court, court of appeals, and superior courts in its two most populous counties, but relies on contested elections everywhere else.
Commission composition varies as well. Some states give lawyers the majority of seats, others give non-lawyers the majority, and a handful split the membership. Some governors face strict deadlines to choose from the commission’s list; others have more flexibility. Judicial terms in retention-election states typically range from four to twenty years, with six being the most common.4Ballotpedia. Retention Election
What Retention Elections Look Like in Practice
About twenty states use retention elections.4Ballotpedia. Retention Election A judge who has performed poorly can be voted out, and a competent judge continues without running against a challenger.
In practice, removal is rare. Since 2008, incumbent state supreme court justices have won roughly 98 percent of retention elections nationwide. Iowa remains the only state where supreme court justices have actually been voted out through this process, when three lost their seats in 2010. No incumbent justice has ever lost a retention election in Missouri’s entire history under the plan.8Ballotpedia. Ballotpedia Courts – Retention Elections and Vacancy Appointments Whether that track record reflects a well-functioning judiciary or low voter engagement is one of the ongoing debates about the system.
Where the System Falls Short
The merit plan has real weaknesses, and decades of experience have surfaced them clearly.
Governors Still Appoint Along Partisan Lines
Research consistently shows that governors tend to appoint judges who share their political leanings, even when choosing from a commission-screened list. A study of merit selection in Kansas, Missouri, and Colorado found measurable differences in voting behavior between judges appointed by Democratic governors and those appointed by Republican ones.9University of Missouri School of Law. Gubernatorial Influence in Merit-Based Judicial Selection The commission constrains the governor’s options; it does not eliminate political influence.
Lawyers Dominate Many Commissions
Commissions are meant to represent the public, but lawyers tend to hold most of the seats. An analysis of thirty-five jurisdictions found that lawyers held a majority of commission seats in twenty-six, even though only fifteen jurisdictions legally required a lawyer majority. Among attorney commissioners, corporate lawyers were the most heavily represented, while public defenders and legal aid attorneys were rarely included.10Brennan Center for Justice. Judicial Nominating Commissions
Diversity Results Are Mixed
The merit plan has not clearly outperformed elections on bench diversity. A 2015 study of state appellate courts found that partisan election states actually had a higher percentage of women on the bench (about 36 percent) than merit selection states (about 29 percent), with no statistically significant difference across selection methods on racial and ethnic diversity.11Judicature (Duke University School of Law). Picking Judges: How Judicial-Selection Methods Affect Diversity in State Appellate Courts
Legislative Pushback
Some states have considered scaling back or eliminating merit selection. Proposals have surfaced to strip nominating commissions of their screening role and give governors unrestricted appointment power subject only to senate confirmation, mirroring the federal model. The argument from those lawmakers is that commission-based selection is itself a form of unaccountable power, exercised by appointees the public never voted for.
Even with these criticisms, the merit plan removes the most visible political pressures on judges: the need to campaign, raise funds, and run under a party banner. It does not produce a politically neutral judiciary, but it changes the terms on which political influence operates, and that was the reformers’ goal.