Week 3 Judicial Process

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Chapter 6: Judges

Judicial Process: Law, Courts and Politics in the United States

Chapter Topics

Judicial Selection

Appointment of Federal Judges

Judicial Elections

Merit Selection

Which Selection System is Best?

Judges at Work

Judging the Judges

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?

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

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

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

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)

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

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”

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

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

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

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

The Obama Judiciary

In just over six years President Obama has left his imprint on the Federal judiciary.

he has appointed the most diverse judiciary ever

over 50% of his District Court nominations have been women

he has appointed the largest number of judges with a net worth >$1,000,000

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

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 were very conservative (Carp, Manning and Stidham 2004)

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

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

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

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

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

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

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.

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?”

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

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

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

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

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

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

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

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

Conclusion

there is considerable debate about whether judges should be elected or appointed

Week 3 Judicial Process

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