DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES
G. Alan Tarr, DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES
DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES
G. Alan Tarr
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DESIGNING AN APPOINTIVE SYSTEM: THE KEY ISSUES
Cover Page Footnote
Distinguished Professor of Political Science and Director, Center for State Constitutional Studies, Rutgers
University (Camden). B.A., College of the Holy Cross, 1968; M.A., University of Chicago, 1970; Ph.D.,
University of Chicago, 1976. The author appreciates the useful comments of Norman Greene and Aman
McLeod on an earlier draft of this study. Research on this article was supported by a fellowship from the
National Endowment for the Humanities, and the author gratefully acknowledges this support. The analysis
and conclusions are the author’s alone and do not represent the views of the National Endowment for the
Humanities.
This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol34/iss1/16
DESIGNING AN APPOINTIVE SYSTEM:
THE KEY ISSUES
G. Alan Tarr *
A leading scholar of state judicial elections has estimated that
more than eighty-seven percent of state judges go before the voters
at some point in their careers.1 This figure, endlessly repeated in
the literature, has fostered a perception of the ubiquity of judicial
elections.2 Yet one might as readily argue that it is appointment,
not election, that dominates judicial selection in the states.
Twenty-one states initially appoint the judges of their general
jurisdiction courts, while another four states appoint at least some of
their trial judges.3 Twenty-two of the states that have intermediate
appellate courts appoint their members, and thirty states appoint
the justices of their supreme courts.4 Moreover, even in states
where selection is nominally by election, judges are often
appointed to the bench to fill unexpired terms.5 For example, in a
study of accession to state supreme courts from 1964-2004, Lisa
Holmes and Jolly Emrey found that more than half the justices
(fifty-two percent) in states that elect judges were initially
appointed to their positions.6 This is significant because once
appointed, these justices often face minimal or no electoral
* Distinguished Professor of Political Science and Director, Center for State
Constitutional Studies, Rutgers University (Camden). B.A., College of the Holy
Cross, 1968; M.A., University of Chicago, 1970; Ph.D., University of Chicago, 1976.
The author appreciates the useful comments of Norman Greene and Aman McLeod
on an earlier draft of this study. Research on this article was supported by a
fellowship from the National Endowment for the Humanities, and the author gratefully
acknowledges this support. The analysis and conclusions are the author’s alone and
do not represent the views of the National Endowment for the Humanities.
1. Roy A. Schotland, Comment, 71 LAW & CONTEMP. PROBS. 149, 154-55 (1998).
2. See id. at 152-53.
3. These data on judicial selection are found in AM. JUDICATURE SOC’Y,
JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS,
http://www.ajs.org/js/JudicialSelectionCharts.pdf (last visited Oct. 25, 2006)
[hereinafter JUDICIAL SELECTION CHARTS].
4. See id.
5. According to Daniel Deja, forty-four states fill unexpired terms by
gubernatorial appointment. See Daniel R. Deja, How Judges Are Selected—A Survey of the
Judicial Selection Process in the United States, 75 MICH. B.J. 904, 906 (1996).
6. Lisa M. Holmes & Jolly A. Emrey, Court Diversification: Staffing the State
Courts of Last Resort Through Interim Appointments, 27 JUST. SYS. J. 1, 6 tbl.1 (2006).
[Vol. XXXIV
challenges to remaining in office,7 thus transforming a nominally
elective process into an essentially appointive one. In a study of
state supreme court elections from 1980-1994, Melinda Gann Hall
discovered that barely half of incumbents (52.1 percent) faced a
challenger, regardless of whether they were initially elected to the
court or appointed mid-term; furthermore, in only 15.5 percent of
the races did they fail to garner more than fifty-five percent of the
vote.8 Appointed incumbents on lower courts are even less likely
to face serious opposition.9 The obvious conclusion is that,
although judicial elections may seem ubiquitous, the vast majority of
state judges never participate in a competitive election.
In states that combine appointment with retention elections,
initial appointment is likewise the determinative decision. Despite
some heralded cases in which interest groups targeted and defeated
supreme court justices, incumbent judges are rarely unseated in
retention elections.10 In the most comprehensive study of judicial
retention elections, involving ten states from 1964-1998, Larry Aspin
found that only fifty-two of 4,588 judges (1.1 percent) were
defeated when they sought retention.11 Close elections were likewise
rare: the same study noted that the average affirmative vote in
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