Chapter Topics
Judicial Selection
Appointment of Federal Judges
Judicial Elections
Merit Selection
Which Selection System is Best?
Judges at Work
Judging the Judges
Characteristics of a Good Judge?
• no agreed upon set of criteria that make
up the personality of a good judge
• judges are expected to be fair, honest,
patient, wise, legal wisdom, etc…
• but they are also expected to be good
managers—keep the docket moving,
organized
• what are the characteristics of a good
judge?
Who Should Select Judges?
• no consensus on whom we should trust to
select judges
• the choices include, lawyers, elected
officials or the voters
• a case can be made for and against each
of these actors
• because of disagreement about who
should select judges, judicial selection is a
highly unstructured process that includes
many different actors depending on the
jurisdiction
Judicial Independence or Political
Accountability?
• judicial independence is viewed as vital for
neutral and impartial decision making, but
• elections are viewed by many as the best
method of guaranteeing the popular
accountability of judicial policy makers
• a tension is created between judicial
independence and accountability
• judges typically enjoy longer terms than
elected officials
Varying Roads to a Judgeship
• three principle methods of judicial
selection are used in the United States
• appointment – selection by either the
executive or legislative branch of
government
• election – either partisan or nonpartisan
• merit selection – typically involving
appointment with retention elections
• political geography matters
Appointment of Federal Judges
• determined by the Constitution
• nominated by the President
• confirmed by the Senate
• serve during good behavior (i.e., life)
• the process appears simple but it is
complex and political
• varies by the level of court (District,
Circuit, Supreme)
Appointment of Federal Judges
• The President has considerable power
• only the President can nominate
• vacant judgeships are highly valued
• present opportunities to purse political
objectives and reward party faithful
• however, the president has very little
control over when vacancies will occur
• lifetime appointment and Congress
rarely authorizes additional judgeships
Appointment of Federal Judges
• Historically the Senate played a greater
role in the confirmation process
• suggested nominees
• the home-state Senator had to approve
of the nomination “senatorial courtesy”
• Today the role of the Senate is diminished,
observers agree that there is less
consultation and there has a been decline in
“senatorial courtesy”
The Demise of Senatorial Courtesy?
• The Senate is granted the power of
“advice and consent”
• Senatorial courtesy is the unwritten
tradition whereby presidents allow Senators
to be consulted before the president
nominates a person to a federal judicial
vacancy in their state
• a Senator from the president’s party
could place a hold on the nominee,
preventing their consideration
The Demise of Senatorial Courtesy?
• the influence of senatorial courtesy has
been diminished in recent years
• its impact varies depending on the:
• political party of the president and
Senators, Senators of the same party
have more influence
• the level of Court, Senators have more
influence at the District level, less at the
Circuit level and virtually none when the
vacancy is on the Supreme Court
Interest Group Involvement
• interests groups are focusing on judicial
selections
• the American Bar Association (ABA) has
historically been very influential—recently
that influence has been diminished
• interest groups focus on:
• promoting possible nominees
• influencing the confirmation votes of
Senators
Presidential Political Goals
• federal judges have been selected to:
• reward the party faithful (e.g.,
Presidents Harding and Theodore
Roosevelt)
• maximize the professionalism of the
judiciary (e.g., Presidents Taft and
Harding)
• influence public policy (e.g., Presidents
Wilson and Franklin Roosevelt)
• modern presidents clearly focus on the
political nature of appointments
The Bush Judiciary
• George W. Bush promised during the 2000
and 2004 Presidential campaigns to appoint
ideological conservatives to the federal
bench
• he dedicated considerable resources to
the process of nominating federal judges
• Democratic and Republican Senators
have rejected some of the president’s
nominees, but most have been confirmed
• on 1/1/05 Bush had appointed 25% of
the District Court and 20% of the Circuit
Backgrounds of Federal Judges
• Political scientists often study the
background characteristics of appointed
judges
• there are some common characteristics
regardless of the appointing president’s
party, those appointed:
• were members of the president’s party
• prior judicial/prosecutorial experience
• frequently involved in party politics
Backgrounds of Federal Judges
• But there are differences too. Recent
presidents have appointed more women and
the net worth of nominees has steadily
increased.
• Does it matter who gets appointed? YES
• an impressive body of research
demonstrates that judicial behavior is
related to the president who made the
appointment
• President Bush’s appointees are very
conservative (Carp, Manning and
Stidham 2004)
Judicial Elections
• the majority of state judges are initially
selected or retain their position through
popular elections
• election types include:
• nonpartisan elections – judicial
candidates run for office without a party
affiliation listed on the ballot
• partisan elections – judicial candidates
are listed on the ballot with party
• retention elections – where the voters
are asked whether to keep the incumbent
judge
Judicial Campaigns
• judicial elections have traditionally been
low-key, low-visibility, low-turnout affairs
• ethical rules and culture prevented
candidates from discussing how they
would decide cases
• campaigns were about personal
integrity and character
• the result is that the public knows very
little about judicial candidates, a poll found
that just 13% of voters knew a great deal
about judicial candidates
Judicial Campaigns
• few incumbent judges are challenged and
even fewer are voted out of office
• but note that this is not terribly different
from other political branches,
Representatives in the US House are
reelected at a 95% rate
• however, changes are in judicial elections
are beginning to occur
Nastier, Noisier,and Costlier
• judicial elections are becoming costlier, in
2000, candidates for State Supreme Court
raised 100% more than those in 1994
• research is finding that money raised in
judicial elections is more important to
winning that other traditional factors such
as partisanship, incumbency and coattails
• judicial elections are getting noisier—more
money is being spend on advertising than
ever before
Merit Selection
• an effort to remove courts from politics
• judicial reformers believe(d): a) elections
discourage qualified lawyers from running,
b) popular elections suggest impropriety, c)
voters do not know how to choose among
candidates
• the propose merit selection aka: non
partisan selection, or Missouri Bar Plan
Merit Selection
• judicial nominating commission
recommends a list of qualified candidates to
the governor, the governor makes a final
selection, and the after a period of service
the judge faces a retention election
• a retention election simply asks the voters
“Should Judge x remain in office?”
• the process is designed to reduce the
influence of politics, but it has consequences
• retention elections are not without critics
Merit Selection
• voters routinely return incumbent judge
(although there are signs it is becoming
slightly more competitive)
• to aid voters states are creating judicial
performance evaluation programs
• a growing number of states use some or
all of the components of merit selection
• politics is still involved, who makes it on
the nominating commission list, who the
governor chooses, etc.
Which System is Best?
• there is a serious and important debate
about how we should choose justices.
• selection methods give heighten or
diminish the role of certain political actors
(and voters)
Evaluating the Systems
• which system produces better judges?
• but, better is a “normative” concept
• we can ask “who gets appointed?” and
“what do they do on the bench?”
Similarities in Judges’ Backgrounds
• judges are more alike than different,
regardless of selection method.
• evidence points to changing trends, more
women, less emphasis on former elected
experience
• but it is difficult to link these changes to
the type of selection system
Diversity and the Judiciary
• the judiciary has traditionally been white,
male and Protestant, but this is changing
• Presidents have been appointing more
diverse judges—37% of federal judges can
now be considered nontraditional
• but there is far less diversity among state
judges, where women and minorities still lag
behind
Trial Judges at Work
• at trial judges serve as umpire
• expected to be neutral
• judges exercise considerable discretion
• helping parties negotiating is important
• rarely write opinions
• must be good administrators—manage
their dockets—the calendar of cases
Benefits of the Job
• a high level of prestige and respect
• control patronage positions, e.g., bailiffs,
clerks, commissioners, reporters, assistants,
etc.
• judicial salaries are higher than the
national average
• but salaries are a major source of
controversy because many lawyers can
make more in the private sector
Frustrations of the Job
• trial judges often face staggering
caseloads
• face pressure to move cases
• judge’s have limited control over lawyers,
jails, prosecutors, etc.
• some judicial positions have low prestige—
criminal court judges
Judging the Judges
• What should be done with unfit judges?
• judicial misconduct can include many
things, e.g.,
• corruption—taking bribes or fixing
cases
• but it can also be the result of old age
or senility
• formal methods of removal include
• recall elections
• impeachment proceedings
State Judicial Conduct Commissions
• created as an arm of the state’s highest
court
• include judges, lawyers, prominent
citizens
• investigate judicial misconduct and make
recommendations to the State Supreme
Court
• investigate in secret and often use
informal pressure to get judge off the bench
without resorting to public disclosure
Federal Conduct and Disability Act
• establishes formal procedures for acting
on complaints of misconduct by federal
judges
• initially heard by judicial councils, sends a
report to the judicial conference, which can
recommend impeachment to the US House
of Representatives
• since 1803 only 5 judges have been
formally removed from the bench
• resignations are a far more likely result of
misconduct investigations
Conclusion
• there is considerable debate about
whether judges should be elected or
appointed
• judges are selected both ways
• judges are more alike than different,
regardless of system
• interest groups are playing an increasing
role
• elections are becoming more competitive
and expensive