San Diego Law Review

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This Article analyzes detailed career-path and other demographic data to determine the extent to which the various judicial selection methods advance diverse candidates to the bench. The results show many similaritiesamong the mix of objective characteristics found on appellate benches across the states, regardless of selection method, but there are some important differences ... Part I discusses the history of judicial selection in the states and reviews the prior empirical and theoretical literature concerning judicial selection methods and the differences among judges produced by those selection methods, mainly with respect to gender, race, and localism. Part II identifies the data gathered for this analysis and describes the particulars of the five methods of judicial selection employed by the states. As noted above, many states elect their appellate judges; in other states, judges are chosen by a formal merit-selection protocol; and in two states, the legislature selects appellate judges. Prior studies categorized appellate judges in all the otherstates as simply “appointed.” Upon close review of the relevant legal mechanisms in those states, this Article concludes it is more appropriate to recognize that their judicial-selection protocols resemble those in merit-selection states, except that in these “merit-confirmation” states, the governor’s appointment power also is constrained by the requirement that a separate elected body, usually the legislature, must approve any appointee before he or she may take the bench. Part III describes the results of the analysis. The typical characteristics of the judges across all selection methods, including career paths, education and other factors, are discussed first. The analysis shows that, although appellate benches in merit-selection states look much like those in election states, judges in merit-confirmation states display some significant differences. Next, this Article addresses some implications of popular election of judges, including (1) differences between the characteristics of judges in election states and those in merit-selection and merit-confirmation states; (2) differencesin the characteristics of judges who first come to the bench in election statesby appointment, rather than by election; and (3) differences between benches produced by partisan elections and by non-partisan elections. Finally, this Article discusses the proportionate representation of women and non-whites on the various appellate benches.

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