Assignment: Roles in the Judicial System

8 Judges

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Introduction Roles and Duties of Judges

Prearrest Judicial Roles Postarrest/Pretrial Roles Judicial Roles at Trial

Judicial Roles Posttrial Box: Current Research Administrative Duties Box: View From the Field

Judicial Selection Federal Judicial Selection State Judicial Selection Box: Current Controversy Diversity on the Bench: The Effect of the Selection System on Who Becomes a Judge Box: Current Research

Judicial Socialization and Development Judicial Accountability and Judicial Independence

Box: Comparative Perspective Judicial Performance Evaluations Accountability for Judicial Misconduct

Summary Discussion Questions Key Terms Internet Sites Student Study Site

Introduction Judges are public officers authorized by law to hear legal disputes, administer the law, and preside over courts of justice. This technical definition, while accurate, does not begin to convey the importance of the position or the varied roles and duties placed on members of the judiciary. In the eyes of many people, judges are expected to personify justice. Judges are the human face the public associates with the American court system. They are portrayed by the media and seen by the public as the wise people in black robes sitting above everybody else in the courtroom. The decisions judges make and the manner in which they are made affect individual lives and also how the justice system is perceived throughout a community and across the nation, if not the world. In reality, judges are mere human beings doing the best they can to facilitate the administration of justice in the American court system.

In this chapter, we look at the role judges play in the functioning of the criminal courts. Before examining the duties performed by judges, we consider the different types of judges across the various levels of the courts. We see who judges are, where they come from, and how they become judges. After discussing these items, we examine the specific duties carried out by judges throughout the criminal justice process. From issuing a warrant for a search to sentencing a convicted murderer to death to restoring a person’s rights following completion of a prison sentence, we examine the roles and duties performed by judges throughout the prosecution and adjudication system.

Roles and Duties of Judges

Most people view the judge as the most powerful and important actor in the criminal court system. After all, people neither rise to their feet out of respect when a prosecutor enters a courtroom nor address defense attorneys as “your honor.” These symbols of respect are bestowed only on judges.

Beyond these symbols of deference, however, the power and actions of trial court judges are greatly limited by the criminal court system’s structure, procedures, and other actors. Specifically, prosecutors have virtually limitless authority in deciding what alleged crimes will be formally prosecuted. Moreover, the prosecutor determines what the specific charges will be and whether a plea bargain will be offered to a defendant. The defendant and defense counsel have control over whether a plea agreement will be entered into, whether a jury trial will be demanded, and whether one or more motions to dismiss a prosecution or exclude evidence from trial will be filed and heard.

While the scene of judges presiding over a trial in a grand courtroom is the vision of the judiciary portrayed on television and in the movies, most of their time is spent performing other duties. As illustrated in Figure 8.1, trial court judges are active participants at multiple stages of the criminal justice system’s processes, from before a suspect is arrested until after a convicted defendant has completed serving a prison sentence.

Figure 8.1 Duties of Trial Court Judge in a Felony Prosecution

Prearrest Judicial Roles The Fourth Amendment of the U.S. Constitution states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Search and arrest warrants must be signed by a judicial officer. Rather than simply rubber stamping warrant applications submitted by police or prosecutors, judges have an obligation to review each application to determine if it provides probable cause to justify the requested search or arrest. Moreover, in considering search warrant applications, a judge must ensure that the place to be searched is clearly articulated and that the items or class of items sought are stated and described with “sufficient specificity.” In addition, a judge may be asked to allow the police to conduct the search at nighttime or to enter the place to be searched without knocking on the door, requesting entry, or announcing their presence.

Postarrest/Pretrial Roles Following the arrest of a suspect, the focus of the criminal justice system moves from the law enforcement arena to the court system. A person placed under arrest and held in custody must be brought before a judge for an initial appearance within a reasonable time period. Generally, this will take place within one to two days of arrest. At the initial appearance, the judge informs the defendant of the nature of the charges associated with the arrest (recall that a defendant is not formally charged until he or she is indicted by a grand jury or bound over for prosecution at a preliminary hearing).

The most important decision a judge has to make at an initial appearance is what conditions should be imposed for an arrestee to be released from custody. In making this decision, a judge must consider what conditions are necessary to reasonably ensure the defendant’s reappearance at further court proceedings as well as what conditions may be necessary to protect the safety of individuals or the community at large. Conditions of release may include the posting of a bond as bail, as well as behavioral requirements such as not consuming alcohol, not contacting the alleged victim, not leaving the state, or regularly reporting to a pretrial services officer. Judges must balance the need for public safety and the administration of justice against the rights of a defendant—who is presumed innocent but also has yet to be formally charged with committing a crime—not to be incarcerated or have his or her freedom unnecessarily restricted.

Once a defendant is formally charged with an offense and arraigned, whether by indictment or information, the case is assigned to a judge. The judge who is assigned the case schedules deadlines for motions to suppress evidence or dismiss some or all the charges. Frequently, motions to suppress or dismiss require the testimony of police officers or other witnesses germane to the specific issues under consideration. The judge presides over the hearings, referred to as evidentiary hearings, and makes rulings on the motions based on the evidence and legal arguments presented in court and on written materials prepared by the prosecution and defense, filed in the form of legal memoranda in support of or opposition to a motion.

Prior to a trial, judges also frequently do what they can to encourage a plea agreement be reached between the parties. While judges rarely become directly involved in plea negotiations, they often encourage the prosecutor and defense attorney to consider the standard “going rates” for the charges involved as established by the courtroom workgroup over time (Eisenstein & Jacobs, 1977). The judge may also imply that a prosecutor who fails to offer a reasonable plea bargain or a defendant/defense attorney who refuses to accept such an offer may be informally sanctioned by the judge (Heumann, 1977). Such sanctioning may include adverse rulings on procedural motions, such as for continuances or scheduling matters, or an increased sentence for a defendant convicted after demanding a trial.

Judicial Roles at Trial The most visible role played by trial court judges is presiding over jury trials. In this role, judges make numerous rulings on admissibility of evidence and objections made during the presentation of testimony and arguments of the attorneys. In addition, judges instruct the jurors on the law they are to apply in reaching a verdict.

Following the presentation of the prosecution and defense cases, the judge has the duty to consider whether there has been sufficient evidence presented for a jury to find that the defendant is guilty of each charge beyond a reasonable doubt. If the evidence has not reached this standard, the judge should direct a verdict of acquittal for the defendant before deliberations begin. Should the jury convict the defendant, the judge retains the ability to enter a directed verdict of not guilty if she or he believes there was insufficient evidence to support a conviction.

Beyond these specific legal duties, judges presiding over jury trials have a more overarching duty. As stated in Standard 6–1.1 of the American Bar Association’s (2000) Standards for Criminal Justice,

The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters

which may significantly promote a just determination of the trial.

While it is critical that judges protect the interests of the prosecution and defense, they are responsible for seeing that the proceedings are conducted in a way that upholds the dignity of the proceedings and the appearance of fairness in the eyes of the public. Promoting such an environment is essential to convey the trustworthiness and legitimacy of the court to the general public. If a judge fails to maintain control of the proceedings and to take all necessary steps to ensure a fair trial, the court may be ridiculed, the proceedings may fall into disrepute, and the potential for an unjust verdict increases considerably. This is exactly what happened in the notorious prosecution of Sam Sheppard for the murder of his wife.

On July 4, 1954, Dr. Sam Sheppard, a well-known member of Cleveland society, called the police to report that his pregnant wife had been beaten to death in their upscale home. Sheppard told police that he fought off and chased the assailant as best he could but was knocked unconscious and could not identify the attacker. From the outset, the police and media suspected Sheppard of killing his wife. In the days following the murder, newspapers editorialized about Sheppard’s guilt, reported that he was not cooperating with the police investigation and that he refused to take a lie detector test, and published information about evidence publicized by the police that was never used at trial. The coroner’s inquest into the cause of death lasted three days, was held in a gymnasium, was conducted in front of hundreds of spectators, and was broadcast live on television and radio. After repeated calls for his arrest, Sheppard was taken into custody by local police on July 30 and charged with the murder of his wife.

The trial itself was a media circus. Prior to the trial, the media published the names and addresses of all the prospective jurors. During the trial, the media overran the courtroom. In addition to assigning nearly all the available seats in the courtroom to the media, the trial judge had an extra table placed behind the defendant for an additional 20 members of the media to sit. Photographers were permitted to take pictures of jurors during the trial; the jury even posed for newspaper photographers while on a lunch break during deliberations. Special telephone and telegraph equipment was installed and made available to the media throughout the floor of the courthouse where the trial was held. The judge even permitted a radio station to broadcast live from a room next to the jury room while the jury took recesses and deliberated. Despite the potential problems with disruption to the courtroom, the repeated inflammatory headlines and articles in the media regarding Sheppard’s guilt, and the effect the atmosphere and media coverage were having on the jury, the trial judge took no steps to limit press access to the trial and jurors’ access to media reports on the trial. After several months of testimony, Sheppard was found guilty of murder and sentenced to life in prison.

Several years after his conviction, the Supreme Court, acting on habeas corpus review, vacated the conviction on the grounds that the massive pretrial publicity and carnival atmosphere denied him his right to a fair trial (Sheppard v. Maxwell, 1966). The Court repeatedly chided the trial court judge for losing control of his courtroom. The Court stated that the trial judge

should have taken whatever steps were necessary to isolate the jury from prejudicial material and outside influences and prevent the court from taking on a “carnival atmosphere.” The Court further criticized the trial judge for failing to “control the release of leads, information and gossip to the press by police officers, witnesses, and the counsel for both sides.”

The Court noted that the judge could have taken a number of remedial actions to prevent the situation from getting out of control. These measures included placing gag orders on the trial participants, limiting media access to the courtroom to normal spectator confines, prohibiting media broadcasts from within the courthouse, protecting the privacy and identity of jurors, investigating whether jurors were exposed to and influenced by the media coverage, moving the trial to another county, sequestering the jury, and continuing the trial until the furor died down. As the trial court took none of these steps, and the defendant was prejudiced as a result, the Court ruled it had no choice but to vacate the conviction.

In November 1966, Sam Sheppard was retried for the murder of his wife. Following 16 days of testimony, a jury found him not guilty. The case against Sam Sheppard has grown in notoriety since the 1954 trial. The saga of Sam Sheppard inspired the television show and movie The Fugitive, which involved a respected doctor, his murdered wife, and an alleged intruder in their suburban home. For an excellent depiction of the Sheppard case, see the book Mockery of Justice: The True Story of the Sheppard Murder Case (Cooper & Sheppard, 1995), which was coauthored by Sam Sheppard’s son.

Judicial Roles Posttrial Following a conviction, whether by plea bargain or trial, it is the judge’s duty to impose a sentence. The sentence a judge imposes is limited to what is permissible under the statute on which the conviction is based. As is discussed in detail in Chapter 11, the flexibility afforded judges in determining an appropriate sentence in a specific case varies depending on the sentencing schemes employed by individual states. In states that have a determinate sentencing system with explicit sentencing guidelines, the discretion possessed by a judge regarding the length of time a defendant may be sentenced to prison is restricted to a range of time. In states that do not have sentencing guidelines but use an indeterminate sentencing system, a judge is likely to have wide discretion in deciding how long a prison sentence is appropriate in a given case.

Regardless of the type of sentencing system present, when judges sentence defendants to probation, judges have a great deal of discretion in deciding what conditions of probation a defendant must abide by to avoid incarceration. Judges may make items such as regular drug or alcohol testing, substance abuse treatment, counseling, education, employment, payment of fines and restitution, and limitations on places a defendant may go or people a defendant may associate with conditions of probation.

The involvement of a trial court judge in a case is not necessarily over once a sentence has

been imposed. If a convicted defendant sentenced to probation violates one or more conditions of probation, a probation officer may file a motion with the judge who sentenced the defendant to have his or her probation revoked or modified. If such a request is made, the judge must consider (a) whether the conditions of probation were in fact violated and (b) if so, what would be an appropriate sanction to impose on the probationer. This often involves a probation revocation hearing at which the judge hears testimony from the probation officer, other witnesses, and the probationer. From the evidence submitted, the judge must make a factual and legal determination as to whether the conditions of probation were violated.

If the judge determines that a probation violation occurred, he or she may revoke the granting of probation and impose a prison sentence within the range permitted for the crime on which the original conviction was based. The judge may also modify the conditions of probation by imposing more stringent supervision, sentencing the probationer to a short period of incarceration in the local jail, or extending the duration of the probationary period.

CURRENT RESEARCH SOURCE: “Judicial Attributes and Sentencing-Deviation Cases: Do Sex, Race, and Politics Matter?” Lydia Tiede, Robert Carp, and Kenneth Manning. The Justice System Journal, 31(3), 125–148, 2010.

In 2010, Lydia Tiede, Robert Carp, and Kenneth Manning published the results of a study that examined whether personal characteristics and backgrounds of federal judges had an impact on their sentencing decisions. The Sentencing Reform Act of 1984 tasked the U.S. Sentencing Commission with developing federal sentencing guidelines with the intention of reducing sentencing disparity. Under the original federal sentencing guidelines, the guidelines were to be mandatory for judges, with departures only allowed under very strict circumstances. In United States v. Booker (2005), the U.S. Supreme Court ruled that the guidelines could not be mandatory and judges were allowed to depart from the guidelines when they deemed it “reasonable” to do so.

To explore what impact personal characteristics of judges had on the use of sentencing departures (either

for or against a defendant), the study examined data from criminal sentencing decisions made by U.S. district court judges from 1997 to 2008.

The findings show that some judicial attributes do significantly impact judges’ departures from the guidelines. Judges who were appointed by a Democrat president were significantly more likely to issue departures that favored the defendant. Additionally, female judges were significantly more likely to decide against defendants, which is contrary to the belief that female judges are more lenient in their sentences. Interestingly, a judge’s race and the number of years he or she had served on the bench did not significantly impact sentencing decisions.

Administrative Duties Apart from the role judges play and the duties they perform in the prosecution and adjudication process, judges serve an important administrative purpose in the functioning of the court system. While most courts have a presiding judge, a court administrator, and a court clerk, the individuals who occupy these positions have limited control of how each individual judge operates and manages his or her own courtroom. In most jurisdictions, individual judges manage their own courtroom and support staff. This management may involve allocation of duties, job performance evaluations, and personality conflicts.

In addition to managing their staff, judges have the freedom and responsibility to set their court schedules. This involves establishing routine starting and ending times as well as setting hearing and trial dates. The more predictable a judge’s scheduling is, the smoother the judge’s courtroom, as well as the entire court, is likely to function. The ability of judges to maintain consistent and predictable schedules is complicated by the fact the attorneys who appear before them have their own scheduling needs and obstacles. Furthermore, it is not always easy to predict how long hearings or other matters will take to complete. For every hearing that runs past its allotted time, any number of matters waiting to be heard by the judge will be delayed and perhaps rescheduled.

VIEW FROM THE FIELD Hon. Cheryl Cessario

Associate Judge, Circuit Court of Cook County

As a judge assigned to a dedicated domestic violence court call, the most difficult aspect of my job was balancing the concern for the victim with the need to protect the constitutional rights of the accused. On the one hand, it is impossible not to feel sympathy for the victim of a crime, particularly when the victim has been physically injured and you see the person in a compromised position (i.e., still bloody, black and blue, swollen, scarred, or with fresh stitches). That being said, it is vital that I keep in mind that the person charged with the crime, the defendant, is presumed to be innocent and begin each bond hearing, motion, or trial with an open mind. Our Constitution requires the state to prove guilt beyond a reasonable doubt. As such, even if I might suspect that a defendant is guilty, I must hold the state to the requisite standard of proof. While a not guilty finding may be hard to explain to the victim, above all else my job is to uphold the law faithfully and evenhandedly.

Judicial Selection The method used to select judges has been hotly debated in the United States for well over 200 years. At the heart of the different judicial selection methods are the concepts of judicial independence and judicial accountability. An independent judiciary is one that is free to make decisions without interference from the other branches of government or concern for the popularity or the political consequences. Judicial accountability, on the other hand, involves the ability of society or the government to observe the performance of judges and remove from office those who are performing below acceptable standards.

Proponents of a strongly independent judiciary argue that the role of judges is to faithfully interpret laws and the Constitution without considering outside factors such as politics or popular sentiment. Advocates of increased judicial accountability maintain that since judges make policy on behalf of the government, they should be directly accountable to somebody, preferably the electorate.

In reality, it is necessary that judges be both independent and accountable. Judges must be free to interpret and apply the law fairly. On the other hand, there must be an effective method of accountability of a judge who abdicates his or her role as a detached, neutral jurist or makes decisions based on individual beliefs or opinions rather than the law and the Constitution. The debate centers on what point of the independence accountability continuum is appropriate. This decision is at the crux of how federal and state court judges are selected across the nation.

As you consider the methods used for selecting judges, first federal judges and later state judges, keep the debate between judicial independence and accountability in mind.

Federal Judicial Selection To understand how judges are selected in the United States, it is helpful to look at how judges were selected in colonial America. During the colonial era, judges in the American colonies were appointed by the king of England and served at his will. The control the king had over the judiciary and the direct control he had over the decisions handed down by colonial judges were sources of great concern and frustration for the colonists. The injustices brought about by this system angered the colonists to the extent that the lack of judicial independence of colonial judges was one of the enumerated grievances raised in the Declaration of Independence.

Given the colonial experience, it should not be surprising that the system of government established by the Constitution, which was premised on separation of powers and checks and balances, would provide for a judiciary that was on equal footing with and independent of the legislative and executive branches. In an effort to meet these objectives, the U.S. Constitution provides that judges are to be appointed for life by the president and must be confirmed by a

majority vote in the Senate. This method of selecting judges was designed to give both the president and the Senate a voice in who would serve on the bench. Furthermore, by providing for lifetime appointments, the Constitution ensures that judges and the judiciary will be independent of the other branches and not beholden to them to maintain their judgeships.

While the plain text of the Constitution seems to clearly state how judges are to be chosen, in practice, their selection, particularly that of district court judges, is a bit more involved. When a federal court vacancy arises, the president’s staff and officials at the justice department search for potential candidates from the state or circuit where the vacancy is located. During this search, input is obtained from party leaders, prominent attorneys and judges, and campaign supporters. In addition, in the case of a vacancy on the district court, the unofficial practice of senatorial courtesy will take place. Senatorial courtesy is a process whereby the president defers to the wishes of a senator from the state where a vacancy is located in nominating a person for a district court judgeship.

Once the president has settled on a candidate, the person’s name is put in nomination and forwarded to the Senate for consideration and, it is hoped, confirmation. Typically, the nomination is referred to the Senate Judiciary Committee. The committee sends the nominee questionnaires about his or her background and writings, which are scrutinized by the committee. In addition, since the 1950s, the American Bar Association (ABA) has rated nominees for federal judgeships. Whether a judicial nominee has been rated “well qualified,” “qualified,” or “not qualified” is considered by the Judiciary Committee. (ABA ratings and related materials can be viewed on the Internet at https://www.abanet.org/scfedjud/ratings.html.)

In addition to these written materials, often the nominee may be asked to appear at hearings where he or she is questioned by members of the committee. Following this testimony and considering other information collected on the nominee, the committee makes a recommendation to the full Senate, which votes on whether to confirm or reject the appointment.

The judicial confirmation process is taken seriously by all involved. This is because, unlike elected offices, federal judgeships involve lifetime appointment. There is only one way under the Constitution that federal judges can be removed: The House of Representatives can vote to impeach a federal judge for “treason, bribery or other high crimes or misdemeanors.” If impeached, the judge is tried by the Senate. To remove the judge, two thirds of the Senate must vote to convict. In the nation’s history, only 13 federal judges have been impeached by the House, and only seven have been convicted by the Senate. In each case, the judge was convicted for committing illegal acts, not for making unpopular decisions or for holding a particular judicial philosophy.

Proponents of appointing judges argue that it protects judicial independence by insulating judges from the pressure of public opinion and the need to be reelected, factors that may have an effect on the decisions judges make on the bench. Also, proponents argue that appointing

judges results in the selection of “better” judges. This argument is based on the proposition that voters lack the necessary background to comprehend what qualities make a “good” judge and are unqualified to intelligently select their judges.

The appointive method of selecting judges has largely succeeded in meeting the aim of providing an independent judiciary. As we will see, the level of independence provided judges under the federal selection system has not always been seen as a good thing by the 50 states in their development of their own judiciaries.

State Judicial Selection In contrast to the relatively straightforward system for selecting federal court judges, the methods used to select state court judges are quite diverse. The four general methods of selecting judges are appointment, partisan elections, nonpartisan elections, and merit selection plans. The general systems used by states to select appellate court judges and judges sitting in trial courts of general jurisdiction, typically superior or county courts, are presented in Table 8.1. While four general methods are used to select judges, each of the 50 states employs systems that have slight nuances that differentiate one from the others. These state- specific systems exist because of a combination of state history, the political environment, and state constitutional impediments to reforming how judges are selected. In the following sections, we examine these items and various methods used to select state judges.

AppointmentAppointment

At the founding of the nation, judges in each of the 13 original states were appointed to the bench. Like their federal counterparts, drafters of state constitutions were highly distrustful of a powerful executive, be it a king, president, or governor. Unlike the drafters of the federal constitution, a majority of the states’ founders were unwilling to give appointing authority to the executive—in the case of states, the governor. Rather, eight states placed the power of judicial appointments in the hands of the legislature. The other five states provided for gubernatorial appointment subject to approval of the legislature or a council.

Over time, the willingness to permit elected officials to appoint judges eroded. People came to believe appointed judges were not sufficiently accountable to the people and were beholden to the politicians who appointed them to the bench.

Currently, fewer than 10 states still select their judges by appointment. Of those states, most

employ appointment by the governor with confirmation by the legislature. Two states, however, give the legislature the power to appoint a segment of their judiciary. As can be seen in Table 8.1, all the states that use executive or legislative appointments are on the East Coast and were one of the original 13 states.

Popular ElectionsPopular Elections

During the nation’s first several decades, no state selected judges through elections. In the 1820s, however, the United States entered a historical period known as the Jacksonian era. During this period, government at all levels was greatly influenced by reformers seeking to open up government to greater popular control. It was as part of this movement that the election of judges took root. The theory behind electing judges is that since judges make policy, they should be accountable to the people. Furthermore, it is contended that an appointed judiciary consists of political elites with political connections. When elections are used to select judges, anyone who meets the statutory requirements to be a judge has an opportunity to do so. As such, beyond being able to hold judges accountable, election systems open up opportunities for the average citizen or attorney.

In 1830, Mississippi became the first state to use judicial elections to choose its judges. As of 2008, more than half of the states use popular elections to select at least a portion of their judiciaries. Judicial elections are either partisan or nonpartisan. Partisan judicial elections are similar to other elections in that candidates are selected by and affiliated with political parties. Nonpartisan judicial elections, in contrast, require candidates to campaign unaffiliated with any political party, and they appear on the ballot without a party designation. While similar in that they place the choice of judges in the hands of voters, there are some important differences between the two modes of elections.

At one time, a majority of states used partisan elections to select judges. During and immediately after the Jacksonian era, popular control over all aspects of the government was a dominant political philosophy in the United States. As elections traditionally involved political parties, it seemed logical that judicial elections should be partisan in nature as well. Such a system would allow the parties to select candidates and run campaigns, thereby giving voters clear choices among opposing candidates from competing parties.

During the early part of the 20th century, the use of partisan elections came under a great deal of criticism. Political parties were implicated in corruption scandals, and big city political machines were viewed as having too much control over the selection of judges. Rather than making judges independent from politicians, partisan judicial elections had caused judges to become responsive to the same forces as those exerted on other elected officials. By the beginning of the 20th century, these concerns led to a shift away from partisan election of judges.

This shift away from partisan judicial elections was generally in the direction of a nonpartisan

election process wherein judges would be selected according to their own attributes rather than on the basis of their political connections. Currently, more than a dozen states use nonpartisan elections as a means of judicial selection.

While nonpartisan elections greatly reduce the influence party politics have on judicial elections, they also remove party identification as a basis for voters to cast their ballots. Without information related to party identification and with little other information about a judicial candidate, voters have been found to base their votes on such items as gender, ethnicity, ballot position, or name recognition. Furthermore, voter participation tends to be lower in nonpartisan elections than in partisan contests.

Whether or not judges should be elected is a hotly debated topic on philosophical as well as practical grounds. The American legal system gives judges the responsibility of dispensing justice equally and dispassionately, regardless of their personal beliefs or what a majority of voters believe would be in their best interests. Moreover, the judiciary was set up to protect individuals from unjust oppression by the government or the attitudes of the majority. Having to campaign for office and answer to the public for correct legal rulings that may not be popular forces judges to face a conflict between upholding the law and doing what is politically beneficial.

While having judges be accountable to the people they represent is desirable, there are doubts as to whether popular elections provide this accountability. Most adults have very little knowledge about the performance of either sitting judges or judicial candidates in their community. Because of this lack of knowledge, only a relatively small percentage of voters who cast votes in a presidential election will even vote in judicial elections that are on the same ballot. Research has also shown that the people who do vote in judicial elections often do not possess any information about the candidates’ qualifications (Sheldon & Lovrich, 1999). As noted above, citizens often cast votes based on such considerations as name recognition, ethnicity, gender, or location on the ballot.

Judicial selection systems that make use of popular elections provide little accountability due in large part to the manner in which they operate and are administered. The most important of these administrative components is the way in which midterm vacancies are addressed. If a judge retires, dies, or decides to resign before the end of his or her term, the judgeship needs to be filled. In states that select judges by elections, an interim judge is appointed either by the governor or through a merit selection process. The newly appointed judge is then given the opportunity to run for reelection as part of the normal election process but with the advantage of running as a sitting judge.

Although this process is seemingly appropriate and may well be necessary, it is widely used to transform the elective system into an appointment system. In 2008 in the state of Washington, which uses nonpartisan elections to select its judges, 60% of sitting judges originally gained their position not by winning a nonpartisan election but by being appointed by the governor.

What makes this situation especially troubling is the fact that very few sitting judges are challenged in contested elections. In such instances, the unchallenged judge is automatically certified to remain on the bench for another full term. Once again, using Washington State as an example, in 2008, 84% of judges were unopposed and therefore automatically maintained their position. It is safe to say that a system that automatically retains 84% of its judges does not effectively promote accountability.

Merit Selection PlansMerit Selection Plans

By the early part of the 20th century, concern about electing judges was growing in legal circles. In 1906, Roscoe Pound, a leading legal scholar, addressed the American Bar Association on “The Causes of Popular Dissatisfaction With the Administration of Justice.” In the address, he stated, “Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench” (p. 415). Other leading scholars, attorneys, and judges condemned the need for judges to conduct political campaigns to reach or stay on the bench. Out of these concerns, “merit plans” for selecting judges were designed and debated.

Under merit selection plans, when a judicial vacancy arises, a bipartisan, broad-based commission (made up of lawyers and nonlawyers) interviews and evaluates candidates for judicial positions and recommends three candidates to the governor. The governor is then required to appoint one of the people recommended by the commission. During the next general election following the appointment, the new judge must stand for a retention election at which voters are asked, “Should Judge __________be retained in office?” A majority of voters must vote that the judge be retained for the judge to stay on the bench. Under the merit system, judges continue to face periodic retention elections in which voters decide whether each judge should remain in office.

The merit system was first used by Missouri in 1940. Today, most states use a merit selection system to select at least some of their judges. Its proponents maintain that it increases the likelihood that high-quality, nonpolitical people will be chosen to serve as judges. Such individuals will be identified and screened by a nonpartisan commission and nominated based on their legal abilities rather than their political connections or ability and willingness to jump into an election campaign. At the same time, it is argued that the system provides the public with the ability to hold poorly performing judges accountable through retention elections.

While the merit selection plan seems to reach a reasonable middle ground between pure appointment and contested election systems, in practice, some of the same problems with the other methods emerge. Critics of the merit system argue that politics enter into the makeup of the nominating commissions. While commission members are selected by a variety of individuals within a state, it is possible that commission members are selected for their political ideologies or leanings. Based on these and other items, different commission members may have different views on how to judge a candidate’s “merit.” As different states have

different methods of selecting who serves on a nominating commission, it is difficult to generalize about the actual impact politics has on the process.

Another concern raised by critics of the merit system is the level of accountability achieved through retention elections. In theory, retention elections provide voters with the opportunity to hold poorly performing judges accountable. While this may be true, since 1980, less than 1% of judges standing for retention election were voted out of office. Relatedly, while contested judicial elections have low levels of participation, this problem is exacerbated in retention elections.

CURRENT CONTROVERSY In 2002, a West Virginia jury returned a verdict of $50 million against A. T. Massey Coal Co. for fraudulent misrepresentation, concealment, and interference with contractual relations against Hugh Caperton and Harmon Mining Company. While the appeal was still pending, Massey’s CEO, Don Blankenship, spent $3 million to have Brent Benjamin elected to the West Virginia Supreme Court (this was three times more than was provided by all other Benjamin supporters). In November 2004, Benjamin was elected to the court.

By the fall of 2005, the appeal of the case reached the West Virginia Supreme Court. Because of the level of campaign support Justice Benjamin received from Blankenship, Caperton asked Justice Benjamin to disqualify himself from the case. Justice Benjamin refused, and in a 3–2 opinion, with Justice Benjamin voting with the majority, the West Virginia Supreme Court vacated the verdict against Massey Coal. Caperton appealed this decision to the U.S. Supreme Court, arguing that it was a violation of the due process clause for Justice Benjamin to have heard the case.

On June 8, 2009, the U.S. Supreme Court, in a 5–4 decision, ruled in favor of Caperton and reversed the

West Virginia Supreme Court’s decision (Caperton v. A. T. Massey Coal Co., Inc., 2009). Writing the majority opinion, Justice Anthony Kennedy wrote that a judge must be disqualified from hearing a case when a campaign contribution to elect a judge creates “a serious risk of actual bias based on objective and reasonable perceptions” (p. 2263). Justice Kennedy went on to state that such a risk is present “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent” (pp. 2263–2264).

In finding that Justice Benjamin should have refrained from hearing the case, the Court emphasized that “not every campaign contribution by a litigant or attorney creates a probability of bias, but this is an exceptional case” (p. 2263). Moreover, the Court emphasized that its opinion was limited to the extraordinary facts presented in the case, noting that “application of the constitutional standard implicated in this case will thus be confined to rare instances” (p. 2267).

While the decision in Caperton is limited to the specific facts presented, its import cannot be overstated. For if the Supreme Court ruled otherwise, it is difficult to imagine a situation when a judge would be required to disqualify himself or herself from a case involving campaign donors or supports.

In another case involving judicial elections, the U.S. Supreme Court recently considered whether judicial candidates have a right to personally solicit funds in support of an election campaign. Most states that elect some or all its judiciary have rules of judicial conduct that prohibit judicial candidates from personally soliciting campaign contributions. States that prohibit judicial candidates directly solicit campaign contributions require the candidate establish a campaign committee that deals with fundraising matters. Lower federal and state courts have issued conflicting opinions about whether these restrictions violate the First Amendment right of freedom of speech of judicial candidates. In 2015, the U.S. Supreme Court considered the constitutionality of these rules in the case of Williams-Yulee v. The Florida Bar (2015).

Lanell Williams-Yulee ran as a candidate in the election for Hillsborough County Judge in 2009. As part of her campaign, Williams-Yulee signed a letter soliciting campaign contributions in support of her candidacy. The Florida Bar filed a complaint against Williams- Yulee alleging that this personal campaign solicitation violated Canon 7C(1) of the Florida Code of Judicial Conduct. This canon provides that a candidate “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” Williams-Yulee was found to have violated the canon and was issued a public reprimand. Williams-Yulee appealed the reprimand, arguing that the prohibition against personal solicitation of campaign funds by judicial candidates was an impermissible infringement of freedom of speech. The Florida Supreme Court upheld the sanction, and Williams-Yulee petitioned the U.S. Supreme Court to consider the matter.

In a 5–4 opinion written by Chief Justice John Roberts, the Court upheld the sanction and the limitation of judicial campaigning. So long as the restriction on free speech is closely tailored to foster a compelling state interest such restrictions are constitutional. The Court held that the Florida restriction serves the compelling state interest of preserving public confidence in the integrity of the judiciary and is sufficiently narrowly tailored to that interest. The Court found the restriction provides an appropriate balance between the need of candidates to get their message out to voters and raise campaign funds to do so and the state interest in promoting the integrity of the court system.

Diversity on the Bench: The Effect of the Selection System on Who Becomes a Judge

Despite the claims regarding judicial independence and accountability, diversity on the bench, and judicial excellence made by proponents of the different systems for selecting judges, research on the effect judicial selection methods have on the makeup of a state’s judiciary has been inconclusive. No system has been found to produce a greater proportion of minority or female judges. Moreover, there is no indication that the selection system employed by a state has an effect on incidents of judicial error or misconduct.

That being said, how judges are selected affects whether an individual will become a judge. Some appointed judges would not have had the political connections or desire to run in a contested election. Other judges, who connect with people and enjoy election campaigns and were elected to the bench, would not have been able to secure an appointment from the governor. Beyond the individual case, however, judicial selection methods do not have a significant impact on the makeup of the judiciary.

Regardless of how states select their judges, the vast majority of judges in the United States are White men. That being said, the number of women and minority judges is increasing across the nation. As can be seen in Table 8.2, three out of four state court judges sitting in appellate courts or trial courts of general jurisdiction are men. Moreover, roughly 90% of state court judges are White.

While these numbers are heavily skewed toward White men, the American judiciary is currently more diverse than ever. Between 1985 and 2005, the number of non-White male judges and the number of female state appellate court judges increased by approximately 20%. In addition, similar increases were found in the number of federal courts of appeals judges (Hurwitz & Lanier, 2008). In a detailed analysis of these changes, Hurwitz and Lanier (2008) found that these changes are not associated with the system used to select judges. Rather, the increases are due to a combination of an increased pool of female and minority attorneys to serve on the bench, an increase in the public’s acceptance of non-White men in positions of authority, and any number of immeasurable reasons.

CURRENT RESEARCH SOURCE: “In a Different Path: The Process of Becoming a Judge for Women and Men.” Margaret S. Williams. Judicature, 90, 104–113, 2006.

In an effort to learn more about why some attorneys become judges, several years ago, Professor Margaret Williams surveyed several hundred practicing attorneys and sitting judges in the state of Texas, which uses partisan elections to select judges. As part of the survey, judges and lawyers were asked a number of questions about their backgrounds to see if there were systematic differences between the two groups.

The items that differentiate the backgrounds of sitting judges from practicing attorneys in Texas revolve

around the political activity of judges prior to their ascension to the bench. Williams reports that when compared to practicing attorneys, judges were significantly more likely to have had previous experience running for elected office, held a political office, and been active in state and local party politics. Beyond their political activity, the surveys showed that judges were more moderate in their ideological positions than were attorneys, therefore giving them broader appeal across the electorate.

It is important to note that this study was conducted in one state that has partisan judicial elections. Future research needs to be conducted to determine if similar items are present in other states and whether the manner in which judges are selected in individual states is related to the pre-judicial backgrounds of the judiciary.

Judicial Socialization and Development Once a person becomes a judge, she or he is faced with the task of performing a job for which she or he has little specific training. After all, there are no classes in law school on how to be a judge. While new judges were most likely successful attorneys who possess sharp legal minds, excellent legal ability is just one of the qualities we expect of our judges. Some of the qualities are innate, while others have to be learned through experience.

The newly selected judge faces a period of rapid adjustment that is frequently a rude awakening—that being a judge might not be exactly what was expected. The judge learns on the job to perform the fundamentals of judging, such as how to maintain order in hearings and trials, administer a docket and calendar, be decisive in one’s actions, and present a commanding presence on the bench while still treating others with respect. This process involves seeing oneself as a judge without becoming afflicted with “black robe disease,” an overwhelming sense of grandeur, wisdom, and power.

Training and orientation can be either formal or informal. Most states have judicial education programs designed to help new judges adapt to the bench. These programs focus on procedural issues and matters of professionalism rather than items of substantive law. Figure 8.2 is a description of the New Judge Orientation curriculum provided to new judges in Ohio.

Figure 8.2 Ohio Judicial College New Judge Orientation Program

SOURCE: Originally authored by Teresa Liston, retired judge, Franklin Co. Municipal Court, and John Meeks, former director, Ohio Judicial College. Updated by Milt Nuzum, director, and Christy Tull, manager, of Curriculum Development, Ohio Judicial College, November 2008.

In addition to state programs, the National Judicial College (NJC), located in Reno, Nevada, provides training in many areas for judges at all levels of experience. In an effort to make this training available to judges from across the country and in jurisdictions with limited financial resources, the NJC offers training seminars and programs on site in Reno as well as over the Internet and through other media.

As with many other jobs, the vocation of judging is often not exactly as described in course materials. While areas involving judicial demeanor, court management, and communication skills may be similar in any court, every court and jurisdiction has its own nuances that new judges must adapt to or attempt to change. In his classic book Plea Bargaining, Milton Heumann (1977) describes in detail how judges adapt to plea bargaining in the Connecticut

trial courts. Heumann describes the process as “drifting along,” where “judges adapt to the court on a case-by-case basis. As a problem crops up, they seek guidance and information.” New judges are repeatedly “grasping for information from prosecutors and veteran judges.” In seeking such guidance, the new judge implicitly learns to operate under the accepted procedures and routines of the local court.

Aside from the procedural and administrative aspects of being a judge, what makes the adjustment to becoming a new judge even more difficult is the varying areas of the law judges are required to master. Attorneys generally specialize in one or two areas of law: criminal, personal injury, corporate, family, and so on. Courts and judges hear cases in each of these and dozens of other areas of law. When judges deal with cases in areas of law that are new to them, it is up to the judge to put in the extra work to get up to speed in the specific areas so as to provide just and informed decisions that are fair to the parties involved. This challenge is compounded when judges are assigned to court departments that hear specific types of cases, such as family law or juvenile, in which they have no experience. While judges learn the substantive law over time, it can be a harrowing experience as this knowledge is gained. Like successful college students who had to adapt and endure growing pains during their first year in college, almost all judges survive this growth process and develop into excellent jurists.

Judicial Accountability and Judicial Independence Judicial accountability involves the ability of an entity to remove or discipline judges who do not perform their jobs in an acceptable manner. While in our system of government, a level of judicial accountability is expected, it is important that it not interfere with judicial independence. Judicial independence entails ensuring that judges are free to decide cases fairly and impartially based on the facts and the law without consideration of public, political, financial, or other outside pressure.

How is it possible to protect judicial independence while maintaining the ability to hold judges accountable? To foster both items appropriately, one must consider two distinct forms of judicial accountability. Decisional accountability involves holding judges answerable for judicial rulings. Were a judge to deliberately ignore the stated law and binding precedent, the judge should be held accountable. However, if a decision was within the bounds of the law and based on precedent, the desire to hold a judge answerable for an unpopular ruling is fraught with peril. Because most rulings fall into the second category, decisional accountability is generally inappropriate.

Behavioral accountability, on the other hand, involves holding individual judges answerable for their conduct on the bench. Because judges are the human element of the justice system, conduct that reflects badly on the integrity and impartiality of the justice system is likely to decrease public trust in the judiciary and should be deterred. Explicit statements, acts of bias and partiality, rudeness, and a lack of respect for parties or counsel are examples of actions for which a judge may be held accountable. Acts related to behavioral accountability, which may

involve acts of judicial misconduct, are universally accepted as being appropriate components of judicial accountability and do not restrict appropriate aspects of judicial independence. The following sections discuss two means of increasing behavioral accountability without infringing on judicial independence.

COMPARATIVE PERSPECTIVE Judges in Japan

Judges in Japan are held in high esteem and treated with great respect. Under the Constitution of Japan, judges are guaranteed independence “in the exercise of their conscience” and to be “bound only by this Constitution and the laws.” Judges cannot be disciplined by any executive office, nor can they be removed unless judicially declared incompetent. This independence is fostered by the fact that the Japanese judiciary is set up as an autonomous national organization. The judges themselves administer

the nationwide system of courts. Judicial appointments and advancement are decided by a central office managed by peers, a practice that is customary in many other large Japanese institutions.

Judges are selected based largely on their merit. A person interested in being a judge must perform well on a highly competitive national judicial examination. The top scorers on this exam are admitted to the court-run Legal Training and Research Institute. While there, they are assigned to a district court prosecutor’s office, to both criminal and civil sections of a district court, and to a law firm. They also attend two extended periods of classroom lectures and training. After 2 years’ study, new graduates can apply to the Supreme Court for placement as assistant judges.

New assistant judges serve for a 10-year term, at the end of which they are qualified to be appointed as full judges. Terms for full judges are also 10 years, and reappointment is the norm. Judges’ careers often span 30 to 40 years, with the majority working until retirement at age 65.

Judicial Performance Evaluations As discussed above, a key factor in how states have chosen to select their judges involves the notion of judicial accountability. Both popular elections and merit selection systems with retention elections are theoretically based on the premise that citizens can hold poorly performing judges accountable via the ballot box. The ability for voters to do this, however, requires a means for them to be informed about which judges are not performing at an acceptable level.

In general, voters have very little information about judicial candidates. This leads to high levels of voter falloff, people who vote for president, governor, or other major office who do not vote in judicial elections. Furthermore, as previously noted, people who do vote in judicial elections often base their votes on such items as gender, ethnicity, ballot position, or name recognition because of a lack of information on the judge’s performance on the bench.

To address this lack of information, a number of states operate judicial performance evaluation (JPE) programs. Typically, JPE programs are based on evaluations of how well a judge demonstrates a number of qualities expected of an excellent jurist submitted by individuals who have experience appearing before the judge. Importantly, they focus exclusively on items related to the judge’s behavior and not to case outcomes. These items generally fall into the categories of legal ability, integrity, communication, judicial temperament, and administrative ability. The keys to JPE systems are that they (a) involve information only from individuals who have firsthand knowledge, through observation, of a judge’s performance and (b) expand the sources of information beyond attorneys to include laypersons, jurors, witnesses, and court staff who have had the ability to personally observe the judge’s performance. This information is then provided to the public in a condensed form for use in considering how to vote in judicial elections.

Research has found that the existence of JPE programs is related to increased voter participation and judicial accountability, with judges receiving poor evaluations either being removed from office by the voters or at least receiving lower vote levels than judges receiving

favorable evaluations (Brody, 2008). Judicial performance evaluation programs are currently used to provide voters with information about judges in eight states that use the merit system with retention elections. Moreover, several states and large counties that use nonpartisan elections are developing plans to implement such programs in the near future.

Accountability for Judicial Misconduct Given their position in the justice system, it should not come as a surprise that judges are held to a high ethical standard. After all, how could the public be expected to trust and rely on a system in which the judges who are the system’s decision makers are unethical? The federal and state governments use a number of methods to foster high ethical standards among their judges, as well as to hold judges who act improperly accountable.

While the Constitution provides that federal judges are appointed for life, it also allows for their removal for “treason, bribery, or other high crimes and misdemeanors.” Complaints of misconduct rarely involve such allegations and are handled internally by the court system. In the federal system, most allegations of judicial misconduct are dealt with by judicial councils that were established by the Judicial Councils Reform and Judicial Conduct and Disabilities Act of 1980. Under the act, procedures are laid out for filing a complaint against a judge, and means are provided for disciplining a judge if the council deems it necessary. The council may also refer the matter to the House of Representatives with a recommendation that impeachment proceedings be commenced. Such an outcome is quite rare. In the history of the nation, only 13 federal judges have faced impeachment trials, and only seven were convicted and removed from office.

In addition to the federal system, each of the 50 states has organizations established to investigate allegations of misconduct by state court judges. The organizations, referred to as judicial conduct commissions, judicial disciplinary commissions and disability commissions, or judicial qualifications commissions, are created by the state supreme court and are generally made up of a combination of judges, attorneys, and nonattorney citizens. (A list of the organizations from each state established to investigate allegations of misconduct by state court judges is maintained by the American Judicature Society and can be found at http://www.ajs.org/ethics/eth_conduct-orgs.asp.) These commissions investigate complaints against state judges to determine if they have merit. If the commission finds a complaint to be meritorious, it may recommend the imposition of discipline against the judge. Sanctions may include a private or public censure, suspension, or removal from the bench. Ultimately, it is up to the state supreme court to make a final determination on an appropriate sanction and to impose punishment.

SUMMARY “The quality of our justice in America patently hinges, in large measure, on the quality of our

judges” (Special Commission on Evaluation of Judicial Performance, 1985). There is little doubt that this statement is as true today as when it was initially written. That being said, given the broad range of expectations placed on the nation’s judiciary, exactly what qualities, backgrounds, practices, and strengths lead to high-quality judges are not easy to define.

Being an excellent judge requires more than being highly intelligent, extremely understanding, or unquestionably fair. More than two thousand years ago, Socrates described the traits required for a person to be an outstanding judge: “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.” Despite the complex substantive nature of the tasks judges are asked to perform, to maintain the public trust, judges must exhibit these qualities in dealing with each case and individual appearing before the bench. For as the English Lord Chief Justice Hewart wrote, “Justice should not only be done but should manifestly and undoubtedly be seen to be done” (Rex v. Sussex Justices, 1924, p. 259).

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DISCUSSION QUESTIONS 1. The notorious trial of Sam Sheppard is discussed in the chapter as an example of the

failure of a trial judge to adequately perform his duties. What kind of impact do you think a case such as this has on the public’s perception of the judiciary?

2. What do you think should be done to make trial judges more accountable when they fail to adequately ensure that the rights of the accused are safeguarded? Should the public have a say in the sanctioning of judges?

3. Do you think that there should be more cooperation or sharing of administrative responsibilities either among the court staff or among judges to improve the scheduling and timing problems?

4. Which system of electing judges, partisan or nonpartisan, do you think is better for preserving the goals of the judicial system?

5. Do you think judges should be elected at all considering that most of the public is not educated in the ways of the legal system?

6. If all judges were appointed, how would the public be able to hold them accountable for the rulings they make?

7. Which interest do you think is more important when determining how to select judges, judicial accountability or judicial independence?

8. Which system for selecting judges do you find achieves the best balance of accountability and judicial independence: pure appointment, election, or merit selection? Why?

9. The chapter speaks of state programs and the National Judicial College, which provides training to judges to help them be more effective on the bench. Should participation in these programs be mandatory for all first-time judges?

10. Given that most judges were attorneys who specialized in only one or two areas of law, should they be required to learn (take classes on) other areas of law rather than leaving it up to them to put in the extra work on their own?

KEY TERMS Behavioral accountability Decisional accountability Judicial accountability Judicial disciplinary commission Judicial independence Judicial performance evaluation Merit selection plans Nonpartisan elections Partisan elections Retention elections Senatorial courtesy

INTERNET SITES American Bar Association Committee on Federal Judiciary: https://www.abanet.org/scfedjud/home.html

American Bar Association Judicial Division: http://www.abanet.org/jd/

American Judges Association: http://aja.ncsc.dni.us/

American Judicature Society: http://www.ajs.org/

National Association of State Judicial Educators: http://nasje.org/

National Association of Women Judges: http://www.nawj.org/

National Center for State Courts: http://www.ncsc.org/

National Judicial College: http://www.judges.org/

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