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Selecting Judges Note to students: The best preparation for taking the reading quiz is to pay close attention to the key terms as you read. Each question in the question banks is directly linked to these key terms and phrases.

Chapter Focus Question: What are the various ways that judges are selected across the US?

Section Focus Question: How do elections of judges affect their decisions?Key Terms:Nomination and confirmation

Tort law Iowa Supreme Court election State supreme court elections and the influence of interest groups Retention elections Missouri Plan Political party of judges on ballots Accusation of being soft on crime

The selection systems used in this US take three general forms. First, judges on the major federal courts and those in some states are chosen by people in the other branches of government. Typically, this form involves nomination by the chief executive and approval by the legislature. Federal judges, for instance, are chosen through presidential nomination and confirmation by the Senate.

Second, in many states the public chooses all judges or the judges who serve on trial courts in what can be called regular elections because they look like elections for other offices. In most of these states, however, the political party affiliations of candidates for judgeships are not listed on the ballot.

Finally, some states use a mixed system in which the other branches and the public help to choose judges. The great majority of these states employ the Missouri Plan, named after the state that first adopted it in 1940. In the Missouri Plan a commission nominates multiple candidates for a judgeship, and the governor chooses one of those candidates. The public periodically votes whether to retain the judge in office. In these retention elections, voters vote "yes" or "no" on a judge rather than choosing between competing candidates.

Federal Judge Selection Process

In the states that use regular elections for judges, it is common for one candidate to run without opposition. When voters do have a choice between candidates, they typically know very little about those candidates. As a result, many people who turn out to vote in an election skip some or all of the judicial contests on the ballot. In states where the candidates’ parties are listed on the ballot, loyal Republicans and Democrats typically vote for their party’s own candidate unless they have good reason to do something different. In states in which candidates’ parties are not indicated on the ballot, people often choose a candidate primarily on the basis of a recognizable name. Some of those judicial candidates are well known themselves; others benefit from sharing their last names with prominent people in politics or other fields. Brown has been a popular name for Ohio politicians, and at one point three Browns sat on the seven-member Ohio Supreme Court.

Overall, incumbent judges do very well when they seek new terms. They frequently run unopposed, especially for courts below the state supreme court. Even when they are opposed, they usually have an advantage in name recognition, and they often have an advantage in the ability to raise campaign funds. In states with partisan elections, however, judges may be vulnerable to defeat if their party is at a disadvantage in the state or district they serve.

Incumbent judges do especially well in retention elections. Most voters are inclined to vote "yes" on keeping a judge in office unless they are given a good reason to cast a "no" vote. Usually, there is nobody who seeks to provide voters with such a reason. And even where there is organized opposition to a sitting judge, those opponents usually have trouble communicating their message to voters.

Selection of Appellate Court Judges by Percentage of States, 1787-2015

In the past few decades, however, developments in state supreme court elections have made those elections more visible to the public in some states and have made some incumbent justices more vulnerable to defeat. Interest groups that care about state supreme court decisions have increased their involvement in campaigns, sometimes providing substantial contributions to candidates or spending money themselves to elect the candidates they favor.

The interest groups that have played the largest roles in state supreme court elections are those with a stake in economic issues that state courts address. This is especially true of the issues that arise in tort law, which involves lawsuits to recover money for personal injuries. The business community has been especially prominent, working to elect justices who favor legal rules that would narrow the ability of people to bring and win lawsuits for injuries. Labor unions have also been active, supporting candidates who favor rules that work to the advantage of people who bring personal injury cases to court. Lawyers and law firms that represent one side or the other in personal injury cases also contribute substantial amounts of money to some state supreme court campaigns. The result has been to make state supreme court contests in states such as Michigan and Alabama more visible to the public.

“Do You Feel Up To Receiving Lawyers?”

One effect of this development has been that some sitting state supreme court justices must contend with large-scale campaigns against them. One tactic adopted by groups is to charge that incumbent justices are soft on crime, a charge that can weaken public support for a justice. Justices who have supported decisions that favored criminal defendants sometimes find that those decisions become major campaign issues. Some of those justices have lost their positions as a result.

Newspaper Campaigns Against State Supreme Court Justices

Economic issues are not the only ones that can drive campaigns against justices. In Iowa, the state supreme court in 2009 unanimously overturned the state’s prohibition of same-sex marriage. That decision triggered a backlash, and interest groups that opposed the decision

initiated a large-scale campaign to defeat the three justices who faced retention elections in 2010. The campaign was successful, as all three justices failed to get the majority they needed. That result was especially striking because of the ease with which most judges win retention elections.

Section Focus Question: What happens in the case of judges appointed by executives?Key Terms:Supreme Court

Courts of appeal District courts Extensive Senate review of Supreme Court justices Gubernatorial appointment of replacement judges Life terms of federal judges

Even in states with regular judicial elections, governors play an important role. Judges often leave the bench in the middle of their terms, and governors generally have the power to fill those vacancies. Although these are only interim appointments, more often than not the judges who receive these appointments keep their positions in subsequent elections. When we take into account the states in which governors appoint judges, including the Missouri Plan states, this means that governors have considerable power to staff state courts.

Presidents have even more power over the federal judiciary because they appoint judges on all the major federal courts to life terms. The one limitation on their power is a significant one: the judges that presidents nominate must be confirmed by the Senate.

When presidents choose judicial nominees, they give the most careful attention to the Supreme Court because it stands at the top of the hierarchy of courts. Below the Supreme Court, nominations to the courts of appeals get closer scrutiny than those to the district courts, the lowest of the three court levels.

Geographic Boundaries, US Courts of Appeals and District Courts

Section Focus Question: How do presidents and Congress consider judges’ decision making during the appointment process?Key Terms:Ideology of Supreme Court justices

Senate confirmation not assured in the courts of appeal FDR's court packing Senate confirmation partisanship Senate confirmation and Robert Bork Senate rejection of Supreme Court nominees

One consideration for presidents and the people who help them choose nominees is the kinds of positions that a prospective nominee might take on judicial issues. Speaking broadly, presidents would like to choose judges who share their own ideological views, whether conservative or liberal. Understandably, this goal is especially important to presidents when they select Supreme Court justices.

Fireside Chat on Court Packing, March 9, 1937:

Franklin Delano Roosevelt was president during an economically and politically critical period in United States history, the Great Depression. At the time of this broadcast, most of the Supreme Court Justices were conservatives. To achieve his policy goals FDR suggested a plan, later known as “court packing.”

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Even at the Supreme Court level, presidents take other considerations into account. They give weight to the qualifications of potential justices for service on the Court. Sometimes they consider the personal attributes of candidates, such as race and gender. But even when they emphasize ideology in their nomination decisions, presidents do not always get what they want. Once they join the Supreme Court, justices may turn out to be more liberal or more conservative than the president expected. Several Republican appointees who joined the Court between the 1950s and 1990s adopted moderate or even liberal positions as justices, to the great disappointment of conservative Republicans.

That kind of outcome has become less likely in the last 20 years. The reason is that presidents now give more weight to ideology in making appointments and give more careful attention to the ideological views of candidates for nominations. As a result, on the current Supreme Court every justice appointed by a Democratic president is at least moderately liberal, and every Republican appointee is at least moderately conservative. That clear ideological line between justices from the two parties did not exist in past eras.

The Senate’s approach to the confirmation of judicial nominees has changed a good deal as well. Traditionally, presidents collaborated with senators from the affected states when they chose nominees to the district courts and courts of appeals, especially senators from their own party. If the president and the relevant senators agreed on a nominee, confirmation by the full Senate was almost assured. At the Supreme Court level, for most of the 20th century senators were strongly inclined to vote in favor of confirming the president’s nominee, and only one nominee failed to win confirmation between 1900 and 1967. Many nominees won by unanimous or near-unanimous votes.

Supreme Court Justices Douglas and Stevens:

Judicial candidates are carefully vetted by the executive branch; however, their court opinions are sometimes surprising, as in the selection of Justice Stevens. Their long terms

can affect court decisions for many decades.

Things began to change after that. Three Supreme Court nominees failed to win confirmation between 1968 and 1970. Robert Bork, a Ronald Reagan nominee who was highly respected for his legal expertise, was defeated in the Senate in 1987. No nominees have been defeated for confirmation since then, but the last four nominees who were voted on for confirmation — Republicans John Roberts and Samuel Alito, and Democrats Sonia Sotomayor and Elena Kagan — each received large numbers of negative votes from senators in the other party. And in 2016 the Senate’s Republican majority chose not to hold hearings or a vote on the confirmation of Barack Obama’s nominee Merrick Garland.

Change has extended to the federal courts of appeals. Since the 1990s, even nominees who had the approval of their home-state senators frequently have run into opposition from other senators. Senate rules provide a nominee’s opponents with multiple ways to block confirmation, and a substantial proportion of nominations fail to reach the floor of the Senate for yes-or-no votes.

Bork Senate Judiciary Committee Hearing, 1987

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These changes in nomination and confirmation of federal judges reflect two developments. First, presidents, senators, and others who are involved in the selection of judges have become increasingly aware that federal courts reach highly consequential decisions. Second, partisan and ideological polarization has affected the selection of judges just as it affects other aspects of government and politics. With participants in government more inclined to think of politics as a fierce competition between conservative Republicans and liberal Democrats, that mindset inevitably shapes the nomination and confirmation of judges. In turn, that result underlines the impact of the larger political world on courts and judges.

“Questions for the Record,” United States District Court Nominees