Across the country the methods for choosing state and local judges basically break down into two categories—elective or appointive. But these two broad classifications contain variants with substantive differences. Elections can be partisan or non-partisan and appointive systems can vest the power solely in the governor or legislature or use some sort of screening and nominating process in a merit selection plan such as Alaska employs. In addition, states sometimes use different procedures for different levels of their court systems.
According to the American Judicature Society, thirty-two states and the District of Columbia use some form of merit selection at one or more levels of their courts (Table 2). Fifteen states and the District of Columbia use a merit selection plan with a nominating commission—such as the Alaska Judicial Council—for either or both the appellate courts and the courts of general jurisdiction. Nine states use a combination of merit selection and other methods, and another nine use merit selection to fill mid-term vacancies.
The American Judicature Society, an independent, non-profit, judicial organization founded in 1913 to address questions related to the functioning of the judiciary branch, has long advocated merit selection plans for the appointment of judges. The prototype for these plans was first adopted in Missouri in the 1940s. Since that time, many other states have adopted merit selection as their method for judicial appointment—some, like Alaska, doing so within the state constitution, and several by executive order.
In those plans incorporating a nominating commission as part of the selection process, the composition of the commission varies as does the way of appointment to the commission. Most nominating commissions comprise a mix of lawyers and non-lawyers, with some also including a sitting judge or justice. Alaska’s approach includes attorneys and non-attorneys, with the chief justice of the supreme court serving ex officio.
In many states, including Alaska, attorney members are selected for the commission by the state bar association. In some, the governor makes the attorney appointments, while other state plans involve the state legislature, the state attorney general, the supreme court and others in some combination for the commission appointment process.
Non-attorney members on nominating commissions are also appointed or elected in a variety of ways: by governors, boards of commissioners, mayors, or supreme courts. In Alaska, the governor appoints the non-attorney members to the Judicial Council.
Terms of services for members of nominating commissions also vary from state to state, with Alaska Judicial Council members appointed for six-year terms.
As detailed in Table 1 (page 10), the rules governing the submission of nominees for judicial appointments cover such points as the number of names submitted, the kinds of additional information passed on to the appointing authority, and the time frame established for nominations. A majority of states specify precisely how many names are to be sent forward or give a range, such as three to six names, while a few specify a minimum number—in Alaska, two or more.
In most states using a merit selection plan, the governor is bound by the recommendation of the nominating body. In a handful of states the procedure also incorporates legislative confirmation of judicial appointments.