Lacking oversight:
How to fix California’s system for selecting judges
By Michael Warnken | May 29, 2026
California’s judicial selection process has undergone significant changes since the state’s admission to the Union in 1850. Today, trial judges are chosen through a hybrid system of judicial elections and gubernatorial appointments, as established by Article VI of the California Constitution. However, both methods present challenges in ensuring judicial independence and public accountability, which is severely neglected.
The resulting judicial decisions have significant impact on local governance and municipal issues, ranging from land use to taxation to local initiatives.
Judicial elections in California are governed by the election code, where candidates compete for office through direct democracy. Vacancies typically occur when sitting trial judges publically announce their retirement, allowing qualified individuals to pursue the position. Recent election data reveals concerning trends, such as high campaign spending for these elections with and the majority of funds coming from attorneys who regularly appear in court and have cases with the judges they are supporting.
Another crucial issue: Judicial elections are conducted countywide. This is especially problematic in counties with huge metropolitan areas like Los Angeles, which creates substantial barriers to meaningful voter engagement. A 2023 study by the California Judicial Council found that in large counties, over 60% of voters report having insufficient information to make informed choices in judicial elections.
Historically, judicial elections dominated the selection process in the early 20th century. However, today, nearly 90% of trial judges in California are chosen through the gubernatorial appointment process. Despite this change, California’s system lacks any meaningful transparency.
Furthermore, retention elections that follow both the election and appointment methods are largely ceremonial and have a limited impact on judicial oversight. Most voters are unfamiliar with the judges on the ballot, making it difficult for them to make informed decisions on whether they should keep or remove a judge.
The gubernatorial appointment process operates under a concerning veil of confidentiality that is unnecessary and makes people aware of this reasonably concerned about the fairness of appointed judges. It also conflicts with California’s constitutional commitment to transparency. The California Bar Association’s Judicial Nominees Evaluation Commission (JNE) follows practices that predate California’s 2004 constitutional amendment mandating government transparency. The main issue with this process is its complete lack of public transparency. Neither the identity of candidates under consideration nor the composition of the vetting committee is disclosed to the public.
The lack of transparency in judicial selection reflects a broader issue in California’s judicial oversight system. The Commission on Judicial Performance (CJP), established under California Constitution Article VI, Section 8, has faced significant criticism for its opaque procedures. The 2016 audit by State Auditor Elaine Howell revealed systematic weaknesses in judicial oversight.
The CJP’s resistance to transparency was starkly illustrated when it sued the auditor to prevent its own audit, an action that seemed to contradict the fundamental principles of public oversight and the purpose of democratic government.
Yet the constitutional mandate for government transparency, as expressed in the state Constitution’s Article I, section 3(b), could not be clearer: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
Technology could significantly enhance accountability, such as implementing a searchable online database of judicial performance metrics (as used in Colorado) or creating digital platforms for public input on judicial candidates (as was piloted in Arizona). However, the entire process as it stands is Orwellian, with only the chief executive having visible fingerprints on the process.
Here are two possible reforms:
- Single-Member Districts for Judicial Elections
The judicial election process should be reformed to incorporate single-member districts within all counties, similar to systems successfully implemented in Illinois and Texas. This would require amending the law to establish district-based elections, with boundaries drawn by the Citizens Redistricting Commission or other similar entity to ensure fairness.
For example, assume there is a county with 250,000 residents and 10 judges, creating districts of 25,000 persons per district for election would make campaigns more manageable and ensure closer connections between judges and their communities. This would also substantially reduce the costs of elections, which is important.
Another hidden benefit of district elections for judges would be that judges elected for an area would be available for prompt probable-cause hearings. This is something that appears to be lost to the sands of time, but it used to be commonplace. If a person was arrested, they were not taken immediately to the jail as we so often see on television shows and in real life. The officers are supposed to charge the individual, but the matter had to be put before a judge sitting as a magistrate before it could a person could be put in jail.
The U.S. Supreme Court has been more eloquent on this topic, in the 1948 case, Johnson v. the United States. The court ruled that the Fourth Amendment’s “protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” The reviewing judge should have a reasonable-sized district and those being able to vote for the judge would put the judge in the position of balancing between a person in his district and the officer, something that is not in place today and has likely led to an increase in incarceration rates.
- Modified Federal Model for Appointments
Adopting a modified federal model for appointments would be the easiest method to use. It would enhance transparency while preserving the traditional executive discretion in this process. The mechanics to this approach would simply require gubernatorial nominations with the state Senate providing advice and consent in their confirmation. Senate hearings over the nominees would create a public record of the selection process. Public hearings would allow both majority and minority party senators to question nominees in open hearings, while citizens could provide relevant information about candidates before confirmation.
A more open and democratic selection process would enhance both the legitimacy of the judiciary and its responsiveness to the communities it serves. These reforms would help provide for a fair and competent judiciary for the citizens of California. These changes would help ensure that California’s judiciary better serves its diverse population while maintaining the highest standards of judicial integrity.