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64 Judicature 176 (1980-1981)
Judicial Selection in the United States: A Special Report

handle is hein.journals/judica64 and id is 178 raw text is: Judicial selection in the United States: a special report by Larry C. Berkson Historically there has been considerable con- troversy about how Americanjudges should be chosen. During the colonial era, they were selected by the king, but his intolerably wide powers over them was one of the abuses which the colonists attacked in the Declaration of Independence. After the Revolution, the states con tin uedi to select j udges by appointment, but the new processes prevented thechief executive from controlling the judiciary.' Gradually, however, states began to adopt )opular election as a means of choosing judges. For example, as early as 1812 Georgia amended its ConstitUtion to provide that jutdges of infe- ior courts be popUlarly elected. In 1816, Indi- ana entered the Union with a constitution that provided for the election of associate judges of tile circuit court. Sixteen years later, Missis- sippi became the first state in which all judges were popularly elected. Michigan held elec- tions for trial judges in 1836. By that time the appointive system had come under serious attack. People resented the fact that property owners controlled the judiciary2 The' were determined to end this privilege of the tpl)er class and to ensure the l)opular sover- eignty we describe as Jacksonian Democracy. During the next decade, there was little opposition to those who advocated popular elect ions. For example, in the New York Con- stitttional Convention of 1846 there was not even a lengthy' dliscussion of the stIhject. As one writer has stated: The debates on an elect ive j udiciary were brief; there was apparently little need to discuss tle abuses of the appointive systmT, or its failures, or why' elec- tion would be better. A few delegates argued cogently for the tetention of the old system, and indeed fore- 176 Juidicattre Nolume 64, Number -t'October, 1980 cast the possible evils if the judiciary fell Under political domination .... But the spirit of reform carried the day.' New York's adoption of an electoral system signaled the beginning of this trend. By the time of the Civil War, 24 of 34 states had estab- lished an elected judiciary with seven states adopting the system in 1850 alone.' As new states were admitted to the Union, all of them adopted popular election of some or all judges until the admission of Alaska in 1959. No panacea Within i short time, however, it became appar- ent that this new system was no panacea, and the need for reform again was recognized. For example, as early as 1853 delegates to the Mas- sachusetts Constittitional Convention viewed the popular election of judges in New York as a failure and refused to adopt the system. One delegate claimed that it had fallen hopelessly into the great cistern and quoted an article in the Evening Post which illustrated that judges This report is condensed from a larger study, JUDICIAL SELECTION IN THE UNITED STATES: A COMPENDIUM OF PRO- VISIONS, which will be published soon by the American Judicature Society. The author wishes to thank Steve Gentry, Michael Gil- man and Ted Nodzenski for their help in compiling the tables for this article. 1. Eight of the original 13 states vested the appoint- ment power in one or both houses of legislature. Two allowed appointment by the governorand hiscouncil, and three vested appointment authority in the governor but required him to obtain consent of the council. Escovitz, JUDICIAL SELECTION AND TENURE 4 (Chicago: American Judicature Society, 1975). 2. Niles, The Popular Election of Judges in Historical Perspective, THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 523 (November, 1966). 3. Id. at 526. 4. Escovitz, supra n. 1, at 6.

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