In a recent report, the Brennan Center proposed reforms to judicial selection methods that would reduce partisan and political pressures on judges. One key element of that proposal is an independent, publicly accountable nominating commission to recruit, evaluate, and recommend judicial candidates for appointment.
Thirty-four states and the District of Columbia already use a commission as part of the selection process for at least some of their high court judges, but not all commissions are alike. Commissions differ in size, composition, and legal authority, not to mention the backgrounds of the individual commissioners that serve on them.
Building on prior research, this paper assesses who has influence on commissions today, both on paper and in practice, by examining the commissions’ members. It first analyzes the relevant provisions of state constitutions, statutes, and executive orders dictating who serves on commissions and who appoints commissioners. Then the paper details the findings of a first-of-its-kind nationwide analysis of the professional background of nearly 340 nominating commissioners in 26 jurisdictions that use commissions to fill all vacancies on their high courts.
Ultimately, this analysis shows key variations in the design of nominating commissions that have implications for who has power over, or a voice in, the commission’s process of recruiting, vetting, and recommending judicial applicants. It also shows that despite the variety of commission designs, there is a near-uniform lack of professional diversity among commissioners. Among the key findings:
Governors appoint a majority of commissioners in less than half of commission states. Majority control gives governors substantial power to shape a commission’s priorities in 15 states, but that power is far from universal. In more jurisdictions — 16 of 35 — no single authority appoints a majority of commissioners.
Lawyers predominate, even when the law does not require it. In 26 of 35 jurisdictions, lawyers filled a majority of commission seats, even though only 15 require lawyer majorities. Lawyers have a unique perspective highly relevant to judges’ work, but they are not fully representative of the public whose rights those judges’ decisions will affect. Nonlawyer commissioners fill a majority of commission seats in just six states and half of the seats in three states.
Many jurisdictions reserve seats for various political, geographic, and professional interests. Nearly half of jurisdictions either reserve seats for each of the two major political parties or limit the ability of one party to command a supermajority on the commission. Twenty-one also require commissioners from different geographic regions in the state. A few even mandate representation for commissioners with particular professional backgrounds such as prosecutors, defense attorneys, or corporate counsel. While 10 states call for their commissioners to reflect the state’s demographic diversity, these provisions are likely not specific enough to ensure this kind of diversity without appointing authorities who independently make it a priority.
Corporate and plaintiffs’ attorneys are best represented. Attorney commissioners with those backgrounds had seats on 22 and 20 commissions, respectively, of the 26 for which we analyzed professional background. Meanwhile, other relevant voices including current and former prosecutors, public defenders, and civil legal service providers sat on just eight, five, and two commissions, respectively. By way of comparison, lobbyists sat on nine commissions.
Nonlawyer commissioners are also homogeneous. Nearly two-thirds of those commissioners came from either private industry or the legislative or executive branches of government.