The Landscape of State Judicial Selection Methods

The power to select state judges is not uniform across the United States. Instead, each state has developed its own combination of methods, often reflecting historical compromises between the ideals of judicial independence and democratic accountability. State executives, particularly governors, play a central role in many of these systems. Understanding the various selection mechanisms is essential to grasping how executive influence shapes the judiciary.

Gubernatorial Appointment with and without Senate Confirmation

In roughly a dozen states, the governor has the authority to appoint judges directly, sometimes subject to confirmation by the state senate or the entire legislature. This method gives the executive the clearest path to shape the judiciary. For example, in New York, the governor appoints judges to the Court of Appeals (the state’s highest court) with the advice and consent of the senate. The governor’s party control of the legislature can either amplify or check that influence. When the senate is controlled by the same party, confirmation is routine; when the opposition holds the chamber, appointments may stall or become bargaining chips in broader policy negotiations.

Merit Selection (The Missouri Plan)

Merit selection, often called the Missouri Plan, was designed to reduce partisan politics in judicial appointments. Under this system, a bipartisan judicial nominating commission screens candidates and presents a short list of qualified individuals to the governor, who must choose from that list. After serving an initial term, the judge faces a nonpartisan retention election. State executives retain significant influence because they pick the replacement when a judge retires or dies, but the commission constrains their choices. As of 2024, 24 states and the District of Columbia use some form of merit selection for their highest court. The governor’s ability to appoint commission members can still shape the ideological direction of the bench over time.

Partisan and Nonpartisan Elections

In about half of the states, judges face elections—either partisan or nonpartisan. While these elections might appear to remove executive influence, governors still affect the process indirectly. They may appoint interim judges when vacancies occur between elections (common in many states), and these appointees then run as incumbents, often with a significant advantage. Additionally, governors can endorse candidates, raise funds for them, or use their political capital to shape the electoral environment. The interplay between appointment and election creates a hybrid system where executive power is felt even at the ballot box.

Legislative Appointment

A small number of states assign judicial selection entirely to the legislature. For example, Virginia’s General Assembly elects judges to the Supreme Court. Here, the governor’s influence is primarily through veto power over judicial budgets or through lobbying, but the executive has no direct appointment authority. Nonetheless, governors can still affect judicial composition by shaping the legislative agenda or by using their platform to push for or against judicial nominees.

Historical Context and Pivotal Appointments

State executives have long used judicial appointments to lock in policy preferences and political philosophies. One famous example occurred in California under Governor Pat Brown (1959–1967). Brown appointed liberal justices to the California Supreme Court, including Justice Stanley Mosk, who went on to author landmark decisions on consumer protection and civil rights. The court’s progressive tilt persisted for decades, shaping everything from environmental law to landlord-tenant disputes. Similarly, in New York, Governor Nelson Rockefeller (1959–1973) appointed judges who were moderate Republicans, leaving a legacy that influenced the state’s business and labor law.

In the modern era, Republican governors in states like Florida and Texas have aggressively used appointments to move state supreme courts to the right. Governor Jeb Bush (1999–2007) appointed conservative justices to the Florida Supreme Court who later played key roles in the 2000 presidential election litigation. In Texas, Governor Rick Perry (2000–2015) made multiple appointments to the Court of Criminal Appeals, reshaping criminal justice policy on issues from the death penalty to habeas corpus. These actions demonstrate how a single governor can alter a state’s legal landscape for a generation.

The Era of One-Party Dominance

In states where one party controls both the governorship and the legislature for extended periods, judicial philosophy can become remarkably uniform. For instance, between 2011 and 2021, Wisconsin saw unified Republican control. Governor Scott Walker appointed three justices to the Wisconsin Supreme Court, shifting it from a 4-3 liberal majority to a 5-2 conservative majority. That court then upheld Act 10, which severely limited collective bargaining for public employees, and approved gerrymandered legislative maps. Such examples underscore how executive influence interacts with political alignment to produce durable judicial shifts.

The Impact on Judicial Ideology and Policy

State court decisions have grown increasingly consequential as the U.S. Supreme Court has delegated more authority to the states. State supreme courts now have the final word on many issues, including abortion rights (after Dobbs v. Jackson Women’s Health Organization), state constitutional protections, voting rights, and criminal sentencing. Because governors control appointments, their ideological leanings directly affect how these cases are decided.

Case Study: Abortion Rights in State Courts

After the U.S. Supreme Court overturned Roe v. Wade in 2022, state courts became the primary battleground for abortion access. In states where governors have appointed conservative majorities to courts—such as Ohio, Iowa, and Tennessee—the result has been strict abortion bans that courts have upheld. Conversely, in states with liberal appointees, like Michigan and Pennsylvania, state courts have interpreted state constitutions to protect abortion access. Governor Gretchen Whitmer’s appointments to the Michigan Supreme Court helped produce a 4-3 liberal majority that blocked enforcement of a 1931 abortion ban. The direct line between a governor’s selections and the rights of millions of women is now unmistakable.

Criminal Justice and Sentencing

Governors also shape how states handle criminal punishment. In Louisiana, Governor John Bel Edwards, a Democrat, appointed judges who were more likely to support criminal justice reform, including sentencing reductions and prisoner reentry programs. Meanwhile, Governor Ron DeSantis of Florida has appointed judges known for supporting “tough on crime” policies and opposing sentencing reforms. These differences play out in decisions on parole eligibility, mandatory minimum challenges, and juvenile life without parole.

Diversity on the Bench

State executives have a unique opportunity to increase the racial, gender, and professional diversity of the judiciary. Since the 1990s, many governors have made explicit commitments to diversify their appointments. For example, Governor Gavin Newsom of California has appointed more women and judges of color to the California appellate courts than any previous governor. In 2022, he appointed Justice Patricia Guerrero as the first Latina chief justice of the California Supreme Court. Such actions not only reflect executive values but also affect the public’s perception of judicial legitimacy.

Research by the Brennan Center for Justice shows that states with merit selection or gubernatorial appointment tend to have higher judicial diversity than those with partisan elections, where incumbents often face barriers that disadvantage minority candidates. A governor’s willingness to look beyond traditional feeder pools (e.g., former prosecutors) can broaden the bench to include public defenders, civil rights attorneys, and law professors. This executive power, when used wisely, can make courts more representative of the communities they serve.

Checks on Executive Influence

Despite the governor’s power, several institutional safeguards limit executive impact. Judicial nominating commissions, when independent and well-funded, can keep unqualified or extremely ideological candidates off the slate. Legislative confirmation provides a second filter, especially in states with divided government. Retention elections give voters the chance to oust appointees who stray too far from mainstream values. In Iowa, voters in 2010 retained three state supreme court justices who had struck down a ban on same-sex marriage—but only after a sustained campaign by opponents. Such elections add an element of accountability that tempers executive overreach.

Additionally, federal courts can intervene in extreme cases through the doctrine of separation of powers, but this tends to be rare in state-level disputes. More often, the check comes from the organized bar, which lobbies for professional standards and transparent processes. State constitutions also impose requirements for judicial minimal qualifications, preventing governors from appointing cronies without legal experience.

The politicization of state judicial appointments has increased dramatically in the 21st century. Dark money groups now spend heavily in state supreme court elections, sometimes with the tacit support of sitting governors. The 2020 Wisconsin Supreme Court election saw nearly $10 million in spending, with much of it coming from out-of-state interests that aligned with the governor’s party. Some states have considered switching from competitive elections to appointment systems to reduce the influence of campaign cash, but such reforms face stiff political opposition because of the entrenched interests.

Another trend is the increasing use of interim appointments to bypass the electoral process. In states like Kansas and Georgia, governors have strategically waited for retirements to appoint judges who might not have won a contested election. This technique allows executives to reshape the judiciary without a public mandate. Critics call it an end-run around democratic accountability, while supporters argue it is simply part of the governor’s constitutional prerogative.

Conclusion

The influence of state executives on judicial appointments is a powerful, often underappreciated component of American governance. Whether through direct appointment, merit selection, or the indirect shaping of elections, governors leave a lasting mark on the courts. The ideological composition of state supreme courts affects the everyday lives of citizens—on issues ranging from abortion to criminal justice to voting rights. Understanding this process is essential for anyone who wants to grasp how political power translates into legal outcomes. As the U.S. Supreme Court continues to devolve authority to the states, the role of governors in choosing judges will only grow more consequential.