Chapter Topics

2. Chapter Topics Judicial Selection Appointment of Federal Judges Judicial Elections Merit Selection Which Selection System is Best? Judges at Work Judging the Judges

3. 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?

4. 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

5. 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

6. 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

7. 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)

8. 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

9. 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”

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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)

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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.

24. 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?”

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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