Judicial selection in California and beyond

The 2026 election cycle in California is almost here--well, close enough.

The filing period for political offices, including judicial elections, is months away--in this case June 2026--and given that most judicial elections go uncontested, why should anyone take notice?

The focus of this column is judicial selection. But what is judicial selection?  Judicial selection is the process by which judges are chosen to serve on courts of record. As many observers of the American judicial system note, this process varies significantly by state and even within different court levels within a state--trial courts versus appellate courts, for example.

This column is meant to be more of a limited comparative analysis of the choice between judicial appointments and elections, or a hybrid of the two or even alternative methods of selection. Specifically, how does California's system for selection of judges differ in comparison to other states. Should all judges be chosen by the people?  Should all judges instead be selected by an appointing authority, namely the governor? Or do some states prefer some type of hybrid method for selecting judges?

To start, we begin with California and its court structure. Here, the state Constitution vests the judicial power in the Supreme Court, Courts of Appeal, and superior courts. In brief, the Chief Justice and the six associate justices of the Supreme Court are appointed by the Governor, confirmed by the Commission on Judicial Appointments, and confirmed by the people at the next general election.  In addition, members of the Supreme Court are subject to judicial retention elections every 12 years.

As to justices of the Courts of Appeal, as noted in the Judicial Council of California fact sheet on the California judicial branch: "The same rules that govern the selection of Supreme Court justices apply to those serving on the Courts of Appeal." (See California Judicial Council Newsroom at https://newsroom.courts.ca.gov.)

In brief, the California court system consists of the superior courts in each of the state's 58 counties, the six districts of the Court of Appeal, and the Supreme Court.

So now we get to judges of the superior court. In California, the Legislature has constitutional authority to determine the number of judgeships in each of the 58 counties. By way of history, what used to be a system of municipal courts and superior courts is now a unified system of superior courts in all 58 counties.  These superior courts have trial jurisdiction over all criminal and civil cases.

Furthermore, membership and qualifications of judges of the superior court are summarized in the Judicial Council fact sheet as follows: "The superior courts have judges and authorized commissioners and referees.  Superior Court judges serve six-year terms and are elected by county voters on a nonpartisan ballot at a general election.  Vacancies are filled through appointment by the Governor." This would seem to lead one to believe that most or all judges are initially elected by the people; the exception being judges directly appointed by the Governor to fill a vacancy.

In fact, most judges are initially appointed by the Governor because of a judicial vacancy due to retirement or other reasons; in contrast, a small number of judges is initially elected directly by the voters by county jurisdiction. Again, this happens in the few instances where an "open seat" is available, as when a sitting judge has opted not to seek reelection. (See California Judicial Council, Courts Newsroom at https://newsroom.courts.ca.gov.)

The following is a concise but useful summary published by the Judicial Council:

(1) Superior Court judges are elected by county voters on a nonpartisan ballot; (2) in-term vacancies due to retirements, deaths, or other departures are filled by the Governor; (3) candidates must be attorneys or judges in California for at least 10 years directly before their selection; (4) the Governor submits a candidate's name to the State Bar's Commission on Judicial Nominees Evaluation; (5) the Governor considers evaluations and appoints judges to the bench; (6) the vast majority of superior court judges initially reach the bench via gubernatorial appointment; and (7) after serving their terms, judges must be reelected by voters, again on a nonpartisan basis.

This leads to the following question: On a comparative basis, how do other states or jurisdictions approach the appointment or election of trial judges at the trial or "district" court level, as some states refer to the trial court bench? (Note that I did not use the term "superior" court, as in the state of New York; the Court of Appeals is what we refer to in California as the state Supreme Court.)

The most common processes for selection of judges are found in several surveys or studies compiled by the National Center for State Courts and the Brennan Center on Justice at New York University School of Law. (See also Ballotpedia website at https://www.Ballotpedia.org.)

In a report initially published in May 2015 and updated in April 2023, the Brennan Center on Justice at New York University School of Law described the diverse method of judicial selection as a "dizzying assortment of methods.... Which method is used depends on the state, the level of court, and the type of vacancy being filled." In most cases, as in California, the governor makes an "interim" appointment to fill a vacant seat. Further, "when sitting judges seek another term, they must participate in some kind of popular election." In some states, for example, judicial elections are conducted on a nonpartisan basis; in others, they are not. What are the most common ways of selecting judges? The Brennan Center study of April 2023 summarizes them like this:

Elections: In judicial elections, candidates appear on the ballot in state or municipal elections, with the candidate with the largest share of the popular vote filling the vacant court seat.  These elections may be partisan (Texas, for example) or nonpartisan (California, for example).

Retention elections: In some states, sitting judges seeking an additional term stand in uncontested retention elections; no other candidates appear on the ballot.  In most states, a judge must receive a simple majority in order to be retained; some states, however, require a higher percentage of the vote in order for a judge to be retained (Illinois, for example).

The Missouri plan/merit selection: This model combines certain elements of appointment- and election-based selection methods. Under this plan first adopted by Missouri, judicial vacancies are filled by the governor who appoints a judge from a slate of candidates selected by a nominating commission. Then sitting judges approaching the end of their terms may seek additional terms in an unopposed retention election. (This process is also referred to by the term "assisted appointment" in Ballotpedia.)

Judicial nominating commission: Several states that appoint judges engage a nominating commission to evaluate candidates for a judicial vacancy.  The commission forwards a short list of candidates it finds most qualified to the appointing authority. "A commission's suggestions can be binding...or nonbinding, in which case the authority may select from the commission's list but is not required to do so."

Legislative appointment: In a small number of states, judges are selected by a vote of the state legislature.

Supreme Court appointment: Some states select judges by a vote of the state Supreme Court.

Confirmation: In some states where judges are appointed by the governor, confirmation may be required by the legislature, a commission, or a council of elected representatives.

Hybrid selection: In some cases, "states use a version of the Missouri Plan without a binding nominating commission and Hawaii uses a judicial selection commission instead of retention elections to decide whether sitting judges are retained for additional terms."

Finally, in some states, the judicial selection method varies in different judicial districts, sometimes depending on a district's population.

In summary, as the Brennan Center study and report indicates, most states use elections as some part of their selection process. Specifically, the report notes that in 16 states, judges are appointed by the governor and "reselected" in unopposed retention elections; in 14 states, judges are selected in contested nonpartisan elections; in 8 states, judges are selected in contested partisan elections (New Mexico, for example).

However, judicial selection by appointment is also common.  As the report notes, in nine states, judges who are appointed by the governor either serve for life terms or until they reach a mandatory retirement age (three of these states), or must be reappointed to additional terms by the governor or the legislature (six of these states).  In another 16 states, judges are initially appointed by the governor and "reselected" in unopposed retention elections. 

Finally, in "a total of 26 states and D.C., the governor appoints judges to their first term from a list of candidates provided by a nominating commission." The author recommends reference to an interactive map published in Ballotpedia where a reader can click on the map to read more about how judicial selection works in that state. This is a useful and straightforward tool. It also includes a brief history of judicial selection, noting that at the founding of the United States, all states selected judges through either gubernatorial or legislative appointments. However, a trend toward judicial elections began in Mississippi in 1832 and continues today. (See also National Center for State Courts, Judicial Selection, at https://www.ncsc.org.)

Further, Ballotpedia points out that, initially, all judicial elections were partisan.  However, as time went on, citizens began looking for alternative methods (nonpartisan), starting around 1873 in Cook County, Illinois. Several states, though apparently not a majority, utilize a nonpartisan process.

What is the best method for selection of judges in California or any other state or jurisdiction?  The author expresses no view on this issue but simply hopes to shed some light on this important process of our democratic system of government.  In the end, the answer may be: You be the judge.