Tennessee Amendment 2: Governor appoints appellate judges in most states, but is often restricted to list given by commission

The first clause of Tennessee’s Amendment 2 vests with the Governor the power to appoint appellate judges

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor

Supreme Courts/Courts of Last Resort

With respect to full terms (i.e. not interim vacancies) of courts of last resort/supreme courts this particular power is vested in 26 states with the state’s governor. However, in most (18) the governor’s power is restricted to a list of nominees prepared by a commission (usually referred to as merit selection or Missouri plan judicial selection). Tennessee had such a system until it was allowed to statutorily lapse. The Tennessee’s governor has by executive order created a commission to submit recommendations to him for future vacancies but there is no statutory or constitutional provision binding him or those who follow him from using the commission.

  • Governor free to pick (3): California, Maine, New Jersey
  • Governor must pick from commission list (18): Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Missouri, Nebraska, New York, Oklahoma, Rhode Island, South Dakota, Utah, Vermont, Wyoming
  • Governor may pick from commission list but isn’t obligated to (5): Delaware, Maryland, Massachusetts, New Hampshire, Tennessee

The remaining 24 states use some sort of election, either partisan, nonpartisan, or election-by-legislature (i.e. no gubernatorial involvement)

  • Nonpartisan election (13): Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Oregon, Washington, Wisconsin
  • Partisan election (9): Alabama, Illinois, Louisiana, Michigan (partisan nominating conventions), New Mexico, Ohio (primary is partisan, general election nonpartisan), Pennsylvania, Texas, West Virginia
  • Legislative election (2): South Carolina, Virginia

Courts of Appeals/Intermediate Appellate Courts

40 states have courts of appeals/intermediate appellate courts IACs and generally the method of selection used for the supreme court/court of last resort is the same. However, that’s not always the case. In Kansas, for example, the Governor is bound to pick from a list provided by a commission for supreme court vacancies, but is free to chose anyone for the court of appeals vacancies. Moreover, in the case of New York, two entirely different systems are used for the state’s two IACs.

  • Governor free to pick (2): California, Kansas
  • Governor free to elevate judge from lower court (1): New York (Appellate Divisions)
  • Governor must pick from commission list (12): Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Missouri, Nebraska, Oklahoma, Utah
  • Governor may pick from commission list but isn’t obligated to (3):  Maryland, Massachusetts,  Tennessee

Three states provide that a judge or member of the judiciary elevates or names the judges to the IAC

  • Judiciary official elevates from trial court (3): New Jersey (Chief Justice elevates), New York (from Appellate Terms only; appointed by the Chief Administrator with the approval of the presiding justice of the appropriate Appellate Division), North Dakota (Supreme Court elevates)

The remaining courts use some sort of election, either partisan, nonpartisan, or election-by-legislature (i.e. no gubernatorial involvement)

  • Nonpartisan election (10): Arkansas, Georgia, Idaho, Kentucky, Michigan, Mississippi, North Carolina, Oregon, Washington, Wisconsin
  • Partisan election (8): Alabama, Illinois, Louisiana, Michigan (partisan nominating conventions), New Mexico, Ohio (primary is partisan, general election nonpartisan), Pennsylvania, Texas
  • Legislative election (2): South Carolina, Virginia

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