Chapter Topics

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Chapter Topics
Judicial Selection Appointment of Federal
Judges Judicial Elections Merit Selection Which
Selection System is Best? Judges at Work Judging
the Judges
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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
  managerskeep the docket moving, organized
• what are the characteristics of a good judge?

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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

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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

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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 non-partisan
• merit selection typically involving
  appointment with retention elections
• political geography matters

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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)

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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

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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

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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 presidents party could place
  a hold on the nominee, preventing their
  consideration

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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

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Interest Group Involvement

• interests groups are focusing on judicial
  selections
• the American Bar Association (ABA) has
  historically been very influentialrecently that
  influence has been diminished
• interest groups focus on
• promoting possible nominees
• influencing the confirmation votes of Senators

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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

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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 presidents nominees, but most have
  been confirmed
• on 1/1/05 Bush had appointed 25 of the District
  Court and 20 of the Circuit

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Backgrounds of Federal Judges

• Political scientists often study the background
  characteristics of appointed judges
• there are some common characteristics regardless
  of the appointing presidents party, those
  appointed
• were members of the presidents party
• prior judicial/prosecutorial experience
• frequently involved in party politics

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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 Bushs appointees are very
  conservative (Carp, Manning and Stidham 2004)

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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

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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

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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

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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 noisiermore
  money is being spend on advertising than ever
  before

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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

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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

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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.

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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?

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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

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Diversity and the Judiciary

• the judiciary has traditionally been white, male
  and Protestant, but this is changing
• Presidents have been appointing more diverse
  judges37 of federal judges can now be
  considered nontraditional
• but there is far less diversity among state
  judges, where women and minorities still lag
  behind

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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 administratorsmanage their
  docketsthe calendar of cases

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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

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Frustrations of the Job

• trial judges often face staggering caseloads
• face pressure to move cases
• judges have limited control over lawyers,
  jails, prosecutors, etc.
• some judicial positions have low
  prestigecriminal court judges

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Judging the Judges

• What should be done with unfit judges?
• judicial misconduct can include many things,
  e.g.,
• corruptiontaking 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

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State Judicial Conduct Commissions

• created as an arm of the states 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

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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

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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