A vigorous and engaged practicing bar and a high quality bench are crucial to upholding this state’s rule of law and fostering the public’s trust and confidence in our system of laws. And a top quality bench requires judicial applicants with a high degree of integrity, impartiality, and competence. The quality of the judiciary is a cornerstone of a healthy democracy, because every judge’s decisions affect the fundamental rights and liberties of the citizens they serve.
Over the past 10 years Nebraska has seen a continual decline in the number of lawyers applying for state appellate and trial court judicial vacancies. This trend raises important questions about the factors influencing lawyers’ decisions to apply—or not apply—for these vital positions. In partnership with the Nebraska Judicial Branch, the NSBA conducted a survey of its membership to obtain their feedback.
The survey was distributed to all active, licensed lawyers in Nebraska, including judges (5,530), and received 802 responses. Of those 802 respondents, 63.5% (509) reported that they have considered applying for a state appellate or trial court judicial vacancy at some point in their career. Among those who considered applying, 35.15% (155) ultimately applied for a judicial vacancy.
What follows is an initial look at the data. The NSBA and Judicial Branch will take a deeper dive in the next weeks to determine whether changes to the judicial selection process may be helpful.
Motivating and Detering Factors for Lawyers that have Considered Applying
Respondents were asked to identify the factors that influenced their decision to apply and indicate whether each factor had a positive, neutral, or negative impact. The most common positive motivators for applying were: personal fulfillment from serving as a judge (65.12%), level of experience at the time of the vacancy (56.95%) and state benefits and retirement compared to their current position (42.92%). (See Table 1.) These findings suggest that the majority of respondents believe a career as a judge would be personally rewarding, that the lawyers who consider applying felt that they had the experience for the position, and that the Nebraska Judicial Branch provides competitive benefits and retirement.
The most frequently cited deterrents were, “The level of political involvement in the application process” (78.27%), “Whether my political party was the same as the Governor’s” (58.15%), “Seeing Judicial Nominating Commissions where qualified candidates did not make it out of Committee” (57.96%), “How it would be perceived by my colleagues or clients if the Judicial Nomination Commission does not find me sufficiently qualified” (40.0%), and “My familiarity with the appointment process” (29.27%). (See Table 2.)
Motivating or Detering Factors for Those Who Have Not Previously Considered Applying for a Judicial Vacancy
For respondents who had not previously considered applying for a judicial vacancy, the survey asked which factors might influence their decision. This group generally expressed less strongly held views, as reflected in the higher percentage of neutral responses across many factors. Overall, their responses were similar to those of respondents who had previously considered applying.
The most common positive motivators were similar to those who had considered a judgeship: “Personal fulfillment from serving as a judge” (37.3%), “State benefits and retirement compared to my current position” (35.91%), and “My ability to earn full retirement benefits (20-year vesting schedule) compared to my current role” (30.59%). (See Table 3.)
The most frequently cited deterrents for future applications are: “The level of political involvement in the application process” (71.28%), “Whether my political party was the same as the Governor’s” (60.4%), “Seeing Judicial Nominating Commissions where qualified candidates did not make it out of Committee” (51.36%), “the need to relocate” (45.41%), “I practice in an area that is not typically selected for judgeships” (42.86%), and “How it would be perceived by my colleagues or clients if the Judicial Nomination Commission does not find me sufficiently qualified” (41.82%). (See Table 4.)
Themes From Open-Ended Responses
The survey also asked respondents for their opinion on what deters more applicants from applying for a judicial vacancy and for their recommendations on how to increase the number of applicants.
Political Affiliation
There is a widely held perception that candidates who do not share the Governor’s political party are unlikely to be appointed as judges in Nebraska. Many respondents indicated that this belief is a significant deterrent to applying.
Salary, Benefits and Support
Respondents frequently recommended improving judicial compensation. Many noted that current salary levels may attract candidates committed to public service but are less competitive for those coming from private practice.
Additionally, respondents suggested that the Judicial Branch should clearly publicize salary details, benefits (such as retirement and health insurance), and onboarding/training opportunities in job announcements to better inform potential applicants.
Several respondents also expressed concern that the current 20-year vesting schedule for retirement discourages lawyers over the age of 45 from applying. Many recommended revisiting the vesting schedule to encourage more experienced attorneys to consider judicial positions.
Qualified Candidates’ Names Not Being Forwarded to the Governor
When lawyers who are perceived as being qualified by the practicing bar are not forwarded to the Governor by the Judicial Nominating Commission, it erodes trust in the process and discourages other candidates from applying. Respondents noted variability in how commissions interpret their role—whether to advance all qualified candidates, or only those deemed the highest quality.
Several respondents suggested that clarifying the role of Judicial Nominating Commissions and establishing more objective criteria for determining qualifications could improve consistency and confidence in the process.
Communications about Vacancies and the Application Process
Respondents recommended that notices of open judicial vacancies be published more prominently and more frequently, and some suggested extending the application timeline. Additionally, respondents emphasized the need for improved communication and education about the judicial nominating and application process, including offering CLEs on the topic.
To that end, the NSBA is now offering a CLE titled Applying for a Judicial Vacancy, available through the NSBA’s OnDemand CLE platform. The seminar materials include valuable feedback from the Governor’s Office regarding the Governor’s role in the process.
Residency Requirement
Some respondents expressed a desire for greater flexibility in the residency requirement, suggesting that eligibility could extend to individuals living in an adjacent district or within a specified distance from the home court. As one respondent noted, “There are judges who live in neighboring districts and would have a shorter commute than if they relocated within their own judicial district.”
Alignment of Practice Areas
There is a widely held perception that historically, governors prefer to appoint prosecutors, and many respondents indicated that this belief significantly discourages lawyers from other practice areas from applying. In point of fact, a number of private practice lawyers have recently been appointed to the bench by the governor; nonetheless, the perception remains.
Relatedly, numerous respondents expressed concern about lawyers with exclusively criminal court experience being appointed to judicial vacancies where more than 70% of the docket consists of domestic relations cases. To address this, several respondents recommended creating specialized dockets or dedicated family court positions. It is thought that these changes may help attract highly qualified family law practitioners and ensure better alignment between judicial experience and case types.
Next Steps
The survey results provide valuable insight into the factors that influence whether Nebraska lawyers apply for judicial vacancies, as well as numerous recommendations for improving the judicial application process.
In the coming months, the NSBA will work with the Judicial Branch to review the data and membership feedback and identify areas for meaningful improvement. I extend my sincere thanks to all who took the time to respond and share their perspectives. Your input is critical to ensuring that Nebraska maintains a fair, transparent, and effective judicial selection process—one that attracts highly qualified candidates and upholds the integrity of our judiciary.
Finally, I’ll add a personal note, as a veteran of the judicial appointment process—there’s no doubt that applying for a judicial vacancy can be intimidating and even exasperating. But so too is running for elective office, or serving in the executive or legislative branch. Government of every kind is messy and often frustrating—but very little in the practice of law is as satisfying as doing an important job well. And the perception that certain experience or political affiliation is preferred should not become self-fulfilling prophecy. Even simply applying for a position—participating in the system—changes the conversation and raises the bar for everyone. So, I encourage all well-qualified lawyers to seriously consider a judicial career. If you think this is your calling, don’t be afraid to take the leap. The payoff can be extremely rewarding to both you and the State of Nebraska.
VIEW TABLES HERE
