The American Judiciary
Third Quiz Explainer
Missouri Plan – this refers to a judicial nominating process, utilizing a judicial
nominating commission comprised of 3 lawyers (usually picked by the American (or
state?) Bar Association) and 3 laypersons (usually chosen by the Governor), with the
Chief Justice serving as chair. This commission make recommendations to the Governor
on judicial nominees, he picks them and then judges face retention elections after 1 year.
- As we learned in the presentation by the graduate students, this doesn’t “take
politics out,” it just changes the game to Bar Association/Governor politics
instead of the “people’s politics.” It is a politics that costs a lot less, though.
Robert Yates – one of the leading Antifederalists; he opposed adoption of the
Constitution partly because (as we read in Behrman’s dissertation “Judicial
Representation”) even though it didn’t grant judicial review explicitly, it was implicit in
the idea of a limited constitution.
- Too much power to give to unelected judges? (I’d argue it has helped more
than hurt)
- Yates is an expression of the more “Jeffersonian tradition”
Judicial removal process – the process of judges being removed because of some aspect
of their judicial conduct.
- federal: impeachment by house, trial and removal by senate
- state: most have a judicial conduct board that supervises the administration of
courts and hear complaints about stuff
- Judges are mainly politicians at the state level; politicians are usually good at
figuring out how the wind is blowing (“if I contest this, I will lose…I
shouldn’t contest this”)
o i.e. official complaints about Haye in West Virginia; he saw which
way the wind was blowing and took a disability retirement (the
disability was that he was a drunk) with full pension and medical
benefits. Yet he probably saved the state money by doing so
blue slips – in the selection of federal judges, the Senate Judiciary Committee receives
nominations for their consideration and then sends a “blue slip” to both Senators from the
nominee’s home state. If either of them returns the slip marked “objection” then the
custom of senatorial courtesy (a legislative norm) is that no hearing will take place and
the nomination will die. If both mark “no objection,” it is usually a foregone conclusion
that they will be confirmed and the entire Senate will vote on them. Here also, if these 2
Senators support them they will likely be confirmed. The senatorial courtesy/blue slip
practice doesn’t apply to appellate judges, but the state’s Senators might submit vacancy
ideas to the President. This demonstrates, for one, that state politics have a tremendous
impact on federal judicial nominations. It is also notable because it does not apply so
strictly to appellate courts.