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Judical Retention Elections in the United States

NCJ Number
S B Carbon; L C Berkson
Date Published
94 pages
This article details the history, purposes, and implementation of judicial retention elections and presents an analysis of the judges who have not been retained.
Briefly, the mechanism of judicial retention requires judges to run unopposed for office after they have served their initial appointments. The voter is asked simply to retain or reject the judge. Those who initially promoted retention elections as part of the larger commission plan intended that most judges seated through this mechanism would be retained in subsequent elections. Attention is focused on the 33 judges who, in the 45-year history of these elections, have not been retained at these elections. Applicable literature, statutory and constitutional provisions, court sources, election data, newspapers, and the unretained judges' responses to anonymous questionnaires provided information for the analysis. In the election years of 1972, 1974, 1976, and 1978, an average of 1.6 percent of the judges running on retention ballots were removed. Approximately 75 percent of the judges were removed for reasons including old age, poor health, involvement in partisan politics, lack of judicial competence, inappropriate judicial conduct, improper judicial temperament, or criminal activity. However, approximately one-quarter of the unsuccessful judges were opposed for other reasons: personality clashes, ethnicity, divorce, judicial philosophy, and case decisions. The impact which bar polls, campaign activity, and editorials have had on retention elections is not easily analyzed. For example, 16 of the 33 judges received negative bar evaluations, but 6 others received positive evaluations and yet were defeated. The study shows that in the majority of instances where judges were not retained, more than one element appears to have contributed to their defeat. In the 20 States which use retention elections, judges have been removed by their States' disciplinary commissions since 1970. If judicial conduct organizations continue this activity, some argue that they will soon eliminate the need for retention elections. Chapter notes, an index, over 50 references, and tabular data are provided.


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