Designing an Appointive System: The Key Issues
![handle is hein.journals/frdurb34 and id is 303 raw text is: 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 juris-
diction courts, while another four states appoint at least some of
their trial judges.' 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 ap-
pointed to the bench to fill unexpired terms.' 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 ap-
pointed to their positions.6 This is significant because once ap-
pointed, 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 fellow-
ship 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, JUDI-
CIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS,
http://www.ajs.org/js/JudicialSelectionCharts.pdf (last visited Oct. 25, 2006) [hereinaf-
ter JUDICIAL SELECTION CHARTS].
4. See id.
5. According to Daniel Deja, forty-four states fill unexpired terms by gubernato-
rial 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).](ViewImageLocal?handle=hein.journals/frdurb34&div=18&collection=journals&method=preview&ext=.png&size=3)
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Designing an Appointive System: The Key Issues
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