Legislative Appointment in the United States

A technique of judicial selection used in several states. The legislative appointment process involves the nomination of a prospective judge by the legislative body itself. If the nominee receives the votes of a majority of one or both chambers of the legislature, he or she stands appointed. The colonists had first-hand experience with a Judiciary (Judicial Personnel issue) under the control of an arbitrary monarch, and following the War of Independence many wished to place judicial selection in the hands of the legislative rather than executive branch. Indeed, legislative selection was the method of preference among most states during the period 1776-1830, with almost half the states using it. The popularity of legislative selection (and executive appointment as well) diminished greatly in the wake of Jacksonian democracy. Many of the states wished to increase the role of the people in governance, and they replaced legislative selection with direct election of judges. Only South Carolina and Virginia continue to use legislative choice as their principle method of selecting judges.

See Also

Executive Appointment (Judicial Personnel issue) Judicial Independence (Judicial Personnel issue).

Analysis and Relevance

The legislative appointment method of judicial selection could not withstand the pressure of popular sovereignty. Andrew Jackson sought to reform the judicial processes by making them more accountable to popular control. One of the consequences was that many states turned to election, initially partisan election, as the preferred method of judicial selection. In addition, people in some states became displeased with attempted legislative control. As state courts began to have an impact on state policies, some legislatures began to engage in power politics. Limits on judicial terms were enacted; more important, unpopular judicial decisions prompted attempts to remove judges. In short, many saw certain state legislative action as too strong, and steps were taken to curb such conduct. Taking judicial selection out of the hands of legislatures was one such step. Where legislative appointment was retained, two patterns emerged. First, prior legislative service became key to judicial appointment. Second, in legislative appointment states, party influence in judicial selection became substantial while the influence of the legal profession was minimal.

Notes and References

1. Definition of Legislative Appointment from the American Law Dictionary, 1991, California