Earlier this year in Harris County, Texas, 17 Black women were elected to the judiciary, bringing the total number of Black judges in the county to 25, or 33%. In the wake of the national media attention that followed, one of the candidates shared how her grassroots outreach campaign sparked increased voter engagement when people realized the election wasn’t just the usual choice between a Democrat white male and a Republican white male. For voters in Harris County, which is 43% Hispanic and nearly 20% Black, being able to see the possibility of a judge who knew and related to their community was inspiring and empowering. Voters responded by showing up to the polls in much higher numbers than in past years.

Although the historic Harris County election represented a milestone in diversifying the ranks of judges, the population of the judiciary in the United States has traditionally only been controlled by a few select white men. In state courts, where more than 90% of all filed cases are heard, a person can become a judge in a few different ways: through a gubernatorial appointment with or without a nominating commission and with state Senate confirmation, and through an election. An election might be partisan, nonpartisan,  retention,or a combination of all those methods. Federal judges are appointed.

An independent judiciary is essential to the public trust and confidence in the court system, and there has long been a debate over whether that aim is best achieved when judges are directly elected by voters or, instead, appointed by state government officials. For far too long, Black Americans and other marginalized groups have suffered under a legal system designed to deny fair and impartial outcomes. Particularly in the criminal justice system, where defendants of color face discrimination that can deprive them of freedom and even their lives, judicial diversity is critical to achieving a fairer system. For many, electing judges is the answer to building a judiciary that best understands, reflects, and is ready to serve their community, while for others, the appointment process has historically offered opportunities they are hesitant to give up.

There is a long history in this country of judges being all white and all men. Many of the early firsts to the judiciary came from appointments as opposed to a desire of the greater electorate to broaden the bench beyond white males. That includes judges like Macon Bolling Allen, a Black man who became the nation’s first nonwhite judicial officer. After Allen passed an exam, the governor of Massachusetts appointed him a justice of the peace in 1847, and he later went on to be a judge on the Inferior Court of Charleston, South Carolina. Nearly a century later, in 1939, Jane Bolin became the first Black woman judge in the U.S. when she was appointed to the New York Domestic Relations Court.  

But since those early firsts, progress has been slow among appointed judges. In 2016, the Center for American Progress reported that 80% of all federal judges—which are appointed by the president—were white and 73% were male. During President Obama’s tenure, his appointments were 64% white and 58% male, while President Trump has appointed the least diverse cohort of judges of any administration in 30 years with 86% white and 79% male. At the end of the day, at both the federal and state levels, for many who live in majority nonwhite jurisdictions the judiciary still does not reflect the demographics of their community.

Importantly, those who are appointed usually have waited their turn and made all of the “correct” and politically safe choices in their careers. In addition, many are also politically well connected or the beneficiaries of nepotism. For Black and other nonwhite lawyers who might lack those advantages, being handpicked for a governor’s judicial appointment is often an unlikely prospect. As a result, although appointments contributed to early diversification of the bench, some feel they also slow the pace down and limit the ranks of nonwhite judges to a fortunate chosen few instead of those lifted up by organizational will of the people.

While judicial appointments create their own set of challenges for diverse would-be judges, judicial elections don’t necessarily lead to better outcomes. Longstanding arguments against electing judges point out that fundraising and campaigning infuse money and favors into the process, which forces judges to become political. Elections can also threaten the diversification of the bench in rural and suburban areas that do not have a majority population of color.

There are Black judges, lawyers, and laypeople on both sides of the election versus appointment question, particularly in Maryland. Judges in Maryland are selected through a hybrid process. Most judges in the state are appointed by the governor through a nominating commission, confirmed by the state Senate, then held to a retention election after 10 or 15 years. The exception is Circuit Court, where any eligible person can run against a sitting judge.

Years ago in Baltimore City, prominent Black lawyer Billy Murphy ran for Circuit Court judge in the majority Black jurisdiction and won despite not having been chosen by the governor. He has repeatedly testified against eliminating the Circuit Court contested election process, arguing that it is the community’s right to choose who will preside over justice in the courts. While Murphy benefited from the Circuit Court election process, however, there have been Black judges appointed in predominantly white counties who later lost reelection against white opponents that used racial identity as their main campaign weapon.

There are serious and legitimate questions to consider about the judicial selection process. As the director of legislative affairs for the Maryland attorney general, I worked under an attorney general who believed judges should be appointed to ensure a nonpolitical and non-biased selection. But I think that viewpoint reflects a patriarchal perspective based on the assumption that one person—the governor, who is usually a white man—knows how best to design the judicial landscape, over and above the seemingly whimsical wishes of racist constituencies and partisan players.

Including judicial elections in the judicial selection process provides a method of checks and balances that allows citizens to engage with those who are tasked with balancing the scales of justice. This aspect of democracy requires us to be attentive and informed when going to the polls. However, if we want the criminal justice system to stop jailing children and doling out biased and unjust punishments, we need to collectively hold every arresting officer, prosecutor, and judge accountable to ensure that our judicial system reflects our societal values. Otherwise, others will gladly continue to make key decisions for us.

For more information on how your state selects judges, check out the National Center for State Courts’ database.