Law Questions

student6741

uscs.4.book_.pdf

Home >Law homework help >Law Questions

David W. Neubauer, Ph.D. UNIVERSITY OF NEW ORLEANS

Henry F. Fradella, J.D., Ph.D. CALIFORNIA STATE UNIVERSITY, LONG BEACH

E L E V E N T H E D I T I O N

AMERICA’S COURTS

A N D T H E C R I M I N A L J U S T I C E S YS T E M

Australia Brazil Japan Korea Mexico Singapore Spain United Kingdom United States

L A W S O N , A N G E L A 6 8 5 3 B U

This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest.

L A W S O N , A N G E L A 6 8 5 3 B U

ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher.

Library of Congress Control Number: 2012937192

Student Edition:

ISBN-13: 978-1-285-06194-8

ISBN-10: 1-285-06194-2

Loose-leaf Edition:

ISBN-13: 978-1-285-06223-5

ISBN-10: 1-285-06223-X

Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA

Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local office at www.cengage.com/global.

Cengage Learning products are represented in Canada by Nelson Education, Ltd.

To learn more about Wadsworth, visit www.cengage.com/wadsworth

Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com.

America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

Editor in Chief: Linda Ganster

Senior Acquisitions Editor: Carolyn Henderson-Meier

Developmental Editor: Shelley Murphy, Julie Martinez

Assistant Editor: Casey Lozier

Media Editor: Ting Jian Yap

Brand Manager: Melissa Larmon

Market Development Manager: Michelle Williams

Senior Content Project Manager: Christy A. Frame

Senior Art Director: Maria Epes

Senior Manufacturing Planner: Judy Inouye

Rights Acquisitions Specialist: Tom McDonough

Production and Composition Service: MPS Limited

Photo and Text Researcher: PreMedia Global

Copy Editor: Debbie Stone

Text Designer: Lisa Delgado

Cover Designer: Riezebos Holzbaur/ Brieanna Hattey

Cover Image: Downtown Fort Worth : © Jeremy Woodhouse/The Image Bank/ Getty Images

For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706

For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions

Further permissions questions can be e-mailed to [email protected]

Printed in the United States of America 1 2 3 4 5 6 7 16 15 14 13 12

L A W S O N , A N G E L A 6 8 5 3 B U

196

P P

h o to

/B re

tt C

o o

m e

Texas judge Belinda Hill listens to lawyers representing Andrea Yates in her retrial on homicide charges for drowning her

five children in a bathtub. Yates was found not guilty by reason of

insanity and committed to the maximum-security North Texas State

Hospital in Vernon, Texas. Verdicts in high-profile cases like this one

often lead to a debate over the role of a judge, including whether

judges should be elected or appointed. Although the public often

holds judges responsible for all that happens in a courtroom, in

reality, judges are often limited by the actions (and inactions) of the

other members of the courtroom work group.

8 Judges

L A W S O N , A N G E L A 6 8 5 3 B U

Chapter Outline THE POSITION OF JUDGE

Powers of the Judge Benefits of the Job Frustrations of the Job

Courts, Law, & Media Judge Judy: Justice with an Attitude or Just Plain

Nonsense

JUDGES WITHIN THE COURTROOM WORK GROUP

VARYING ROADS TO A JUDGESHIP Executive Appointments Election of Judges Merit Selection

CONSEQUENCES OF JUDICIAL SELECTION

Which System Is Best? Similarities in Judges’ Backgrounds Diversity and the Judiciary

JUDGING THE JUDGES Judicial Independence

CASE CLOSE-UP: Chisom v. Roemer & Diversity on the Bench

Courts, Controversy, and the Administration of Justice

Is Judicial Independence Being Undermined?

Judicial Misconduct State Judicial Conduct Commissions Federal Conduct and Disability Act

JUDICIAL ETHICS

CCCCChhhhhaaaaappppttttteeeeerrrrr OOOOOuuuutttttlllliiiinnnneeeeeCCCCC aaapppppttteee OOOOuuuuttt eeeChapter Outline

L A W S O N , A N G E L A 6 8 5 3 B U

LO1

198

After reading this chapter, you should be able to:

Discuss the role of the judge within the courtroom work group.

Name the three major ways that judges are selected in the United States.

Analyze the consequences of different methods of judicial selection.

Recognize major changes in the composition of the bench over the past several decades.

Describe the activities of state judicial conduct commissions.

Explain the difference between the impeachment and the removal of a federal judge.

111LO1

LO2

LO3

LO4

LO5

LO6

Learning Objectives

FACT OR FICTION?

Facing a $50 million verdict for fraudulent business practices, a coal executive spends $3 million to support a candidate for a seat on the West Virginia Supreme Court; the candidate wins and then casts the deciding vote to overturn the verdict.

Facing a multi-million-dollar verdict in a toxic waste case, a large chemical company secretly finances a candidate for the Mississippi Supreme Court who is likely to rule in its favor.

One of these cases is based on a recent U.S. Supreme Court decision (Caperton v. Massey Coal Company, 2009); the other on the plot of The Appeal by popular fiction writer John Grisham (2008), who is also a lawyer. And Grisham admits that his novel is at least partially inspired by the real case. This blending of fact and fiction, life imitating art, offers a very pub- lic example of the long-standing debate in the United States over how best to select judges. Should judges be elected directly by the voters, appointed by an elected official (president or governor), or selected by a hybrid system that gives lawyers a direct role in the process?

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 199

disposition, the accused face judges whenever decisions affecting their futures are made (Table 8.1). Judges set bail and revoke it; they determine whether sufficient probable cause exists to hold defendants; they rule on pretrial motions to exclude evidence; they accept pleas of guilty; if a trial takes place, they preside; and after conviction, they set punishment.

Although we tend to think of judges primarily in terms of presiding at trials, their work is much more varied. In the course of their workday, they conduct hearings, accept guilty pleas, impose sen- tences, or work in their offices (called chambers). In carrying out the responsibilities of the office, judges mainly react to the work of prosecutors and defense attorneys.

Benefits of the Job

In discharging their duties, judges enjoy some distinct benefits of the office. Traditionally, they have been given a high level of prestige and respect. Lawyers address the judge as “your honor,” and everyone rises when the judge enters or leaves the courtroom. Judges also enjoy other trappings of the office. Fed- eral judges enjoy life terms, as do judges in a hand- ful of states. More commonly, terms of office for state judges range from 6 to 10 years, considerably longer than those of other public officeholders—a reflection of the independence of the American judiciary.

For many lawyers, a judgeship is the capstone to a successful career. Judicial salaries are not the highest incomes in the legal profession, but they are higher than the average of other criminal justice per- sonnel. Annual salaries of general jurisdiction trial judges range from $104,170 to $180,802 (National Center for State Courts, 2011). The average is about $135,000. For some lawyers, a judicial salary repre- sents an increase over that received in private prac- tice, and it is certainly more secure. For the majority of lawyers, however, a judgeship represents a signif- icant decrease in earning power (Jensen, 2011). For example, it is not at all unusual to find lawyers in federal court who earn much more than the judges before whom they appear in court.

Many judgeships carry with them consider- able patronage powers. Court positions—bailiffs, clerks, court reporters, probation officers, and sec- retaries—must be filled. Because these positions are usually not covered by civil service, judges can award jobs to friends, relatives, campaign workers,

The debate over how to select judges underscores the important role of the judge in the American legal system. The purpose of this chapter is to untangle the conflicting notions about what judges do and how they do it. The chapter begins by examining the posi- tion of judge and how various pressures (the large number of cases, for example) have eroded the ideal image of a judge’s power. Next, the judge will be con- sidered as a member of the courtroom community. A judge’s actions are shaped and influenced by the actions of prosecutors and defense attorneys, among others. At the same time, the type of justice handed out varies from one judge to another. A persistent con- cern is whether judges are as qualified as they should be. Therefore, two suggestions for improving the quality of the judiciary will be examined: merit selec- tion and mechanisms for removing unfit judges. The role of judicial ethics will also be examined.

THE POSITION OF JUDGE

For most Americans, the judge is the symbol of justice. Of all the actors in the criminal justice process, the public holds the judge most respon- sible for ensuring that the system operates fairly and impartially. And most certainly the trappings of office—the flowing black robes, the gavel, and the command “All rise!” when the judge enters the courtroom—reinforce this mystique. As important as these symbols are, they sometimes raise obsta- cles to understanding what judges actually do and how they influence the criminal justice process.

The vast array of legal powers often causes us to overestimate the actual influence of the judge by ignoring the importance of the other actors in the courtroom work group. At the same time, the mystique of the office often results in an under- estimation of the role of the judge. Judges are not merely impartial black-robed umpires who hand down decisions according to clear and unwavering rules. “This view of the judge as an invisible inter- preter of the law, as a part of the courtroom with no more individual personality than a witness chair or a jury box, is a fiction that judges themselves have done much to perpetuate” (Jackson, 1974, p. vii).

Powers of the Judge

The formal powers of judges extend throughout the criminal court process. From arrest to final

L A W S O N , A N G E L A 6 8 5 3 B U

200 Part II / Legal Actors

and party leaders. In some cities, judicial staff posi- tions are significant sources of party patronage.

Frustrations of the Job

Because of the pressures of today’s criminal justice system, the ideals surrounding the judge are not

always borne out by the reality. One of the most frustrating aspects of being a judge is the heavy caseload and corresponding administrative prob- lems (Rosen, 1987). Thus, instead of having time to reflect on challenging legal questions or to con- sider the proper sentence for a convicted felon, trial judges must move cases, acting more like

Lower Court Major Trial Court Appellate Court

Crime Appellate court opinions are the final word on interpreting criminal laws passed by the legislature.

Arrest Signs arrest warrants. Wrestles with legality of police arrest in context of question of illegal search and seizure.

Initial appearance Informs defendant of pending charges; appoints counsel for indigents.

Bail Sets initial bail amount. May alter bail amount. Rarely decides that bail is excessive.

Charging No authority to intervene. No authority to intervene. No authority to intervene.

Preliminary hearing Presides over preliminary hearing.

Grand jury Chief judge has nominal supervision over the grand jury.

Arraignment Informs defendant of pending charges and enters defendant’s plea.

Evidence Reviews and authorizes search warrants.

Rules on suppression motions involving illegal search and seizure and custodial interrogation.

Rulings establish boundaries for search and seizure and custodial interrogation.

Plea bargaining Judges rely on pleas to dispose of items on large dockets.

Some judges actively participate, whereas others are passive.

Rarely rules that plea of guilty was not voluntary.

Trial Rarely held. Presides at trial. Rules on admissibility of evidence. Instructs jury as to the law applicable to the case.

Decides whether evidence was properly admitted. Decides whether trial judge properly instructed jury as to the law.

Sentencing Typically imposes “normal penalties.”

Increasingly difficult and controversial task.

In some jurisdictions, must interpret sentencing guidelines.

Appeal Rare, except in some driving under the influence convictions.

Notice of appeal filed in trial court.

Rarely reverses trial judge.

TABLE 8.1 ■ ROLE OF JUDGES IN THE STEPS OF CRIMINAL PROCEDURE (TYPICAL FELONY CASE)

C e

n g

a g

e L

e a

rn in

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 201

JUDGE JUDY: JUSTICE WITH AN ATTITUDE OR JUST PLAIN NONSENSE?

Straight-talking Judge Judy (Judith Sheindlin) stormed onto the television screen on September 16, 1996, and quickly became the boss

of syndicated courtroom television show ratings. Her show is regularly among the top syndicated shows in the country, and you’ve probably seen it. Before starting her own show, Judge Judy served as a judge in New York, hearing more than 20,000 cases. She is the author of three books for a general audience—Don’t Pee on My Leg and Tell Me It’s Raining (1996); Beauty Fades, Dumb Is Forever (1999); Keep It Simple, Stupid: You’re Smarter Than You Look (2000); and two children’s books, Win or Lose by How You Choose (2000) and You Can’t Judge a Book by Its Cover: Cool Rules for School (2001). On the bench, she was known for her outspoken behavior and for being one of New York’s toughest judges—attributes she brings to her

“syndicourt” (syndicated courtroom) television show with sayings such as “I’m the BOSS, Applesauce.”

Some observers see Judge Judy and other law-related television shows as beneficial because they reveal to view- ers information about how the legal system works. Others disagree and see Judge Judy’s behavior and that of her fellow syndicourt show judges as unrepresentative of the real-world job of judging, describing it as “sarcastic, accusatory, and opin- ionated” (Podlas, 2002, p. 41).

A fair question might be, “What difference does it make who’s right? If people enjoy the entertainment, what damage could these shows possibly do?” Kimberlianne Podlas (2002) suggests four troubling implications of these shows: (1) They may reduce respect for the bench; (2) they may lead to general misinterpretation of judicial behavior and temperament; (3) they may alter expectations about the legal system; and (4) they may lead participants in real cases to adopt inappropriate models of behavior.

COURTS,

LAW, &

MEDIA

administrators in a bureaucracy than as judicial sages. As a New York judge put it:

It is clear that the “grand tradition” judge, the aloof

brooding charismatic figure in the Old Testament

tradition, is hardly a real figure. The reality is the

working judge who must be politician, administra-

tor, bureaucrat, and lawyer in order to cope with a

crushing calendar of cases. A Metropolitan Court

Judge might well ask, “Did John Marshall or Oliver

Wendell Holmes ever have to clear a calendar like

mine?” (Blumberg, 1967a, p. 120)

Although this quote is more than 40 years old, the same judicial frustrations affect judges today (Mayer, 2007).

Moreover, the judge’s actions are limited by the system—lawyers are late, court documents get lost, jails are crowded. Added to these general con- straints is the overall low prestige of criminal court judges, who occupy the lowest rung within the

judicial system. Like the other actors in the criminal justice system, the judge becomes tainted by close association with defendants who are perceived as society’s outcasts.

Thus, the frustrations of the criminal trial court judge are many. Some judges prefer the relative peace of civil court, where dockets are less crowded, courtrooms quieter, legal issues more intriguing, and witnesses more honest than in the criminal court atmosphere of too many cases, too much noise, too many routine (and often dull) cases, and too many fabricated stories (Rothwax, 1996). Other judges, however, like the camaraderie of the criminal court.

Despite these frustrations, judges appear to be very satisfied with their jobs. A recent study of trial court judges in New York reports that they were very satisfied with their jobs, enjoyed the activity of judging, and found the work substantively inter- esting. Their major complaint was the lack of regu- lar pay raises—an overwhelming 94 percent stated they were very dissatisfied with the regularity of pay raises (Jensen, 2011).

Continued on next page

L A W S O N , A N G E L A 6 8 5 3 B U

202 Part II / Legal Actors

Continued from previous page

To test whether any of those negative consequences of watching too much syndicourt TV exist, Podlas conducted a survey of 241 potential jurors in three jurisdictions in the northeastern United States. She asked them about their syndicourt viewing behavior and about their views of judges. Her findings reveal that frequent viewers of syndicourt pro- grams, when compared with nonviewers, are far more likely to believe that “judges should have an opinion regarding the verdict, judges should make their opinion clear, judges should ask questions during trial, judges should be aggressive with litigants or express displeasure with their testimony,” and perhaps most shockingly, “a judge’s silence indicates belief in a litigant” (Podlas, 2002, p. 41). Moreover, prior court service or experience did nothing to diminish the impact of watching these programs on attitudes about the judiciary.

Judge Judy may have an admirable goal, for she says on her website that for many years, she has “tried to change the way families deal with problems on a very small scale, one case at a time. Now I can use the skills I have devel- oped and take my message to more people every day.” But

it may also be the case that in taking her message—which is inconsistent with the normal behavior of judges and the actual day-to-day operations of America’s courts—that she is doing more harm than good to the credibility and legitimacy of the judiciary. After all, Judge Judy is hardly a model for judicial temperament (Bisceglia, 2007) so in the end, what you get is social condemnation with your justice (Cohn, 2005).

After watching one or more episodes of Judge Judy, be prepared to discuss the following:

1. Compare the behavior of Judge Judy with that normally expected of judges as described in this chapter.

2. Write down three things you think you know about the legal system based on your own experience watch- ing law-related shows such as Judge Judy, and then discuss whether your observations are indeed true.

3. In what way might the popularity of Judge Judy be related to the public desire to be able to see actual courtroom proceedings?

JUDGES WITHIN THE COURTROOM WORK GROUP

The public believes that judges are the princi- pal decision makers in courts. Often they are not. Instead, they are constrained by the actions of other members of the courtroom work group—pros- ecutors, defense attorneys, and probation officers. Thus, judges often accept bail recommendations offered by prosecutors, plea agreements negotiated by defense attorneys, and sentences recommended by the probation officer. In short, although judges still retain the formal legal powers of their office, they often informally share these powers with other members of the courtroom work group.

Sanctions can be applied against judges who deviate from the consensus of the courtroom work group. Defense attorneys and prosecutors can foul up judges’ scheduling of cases by requesting con- tinuances or failing to have witnesses present when required. Particularly in big-city courts, judges who fall too far behind in disposing of the docket

feel pressure from other judges, especially the chief judge. Judges who fail to move their docket may be transferred to less desirable duties (for example, traffic court or juvenile court).

By no means are judges totally controlled by the courtroom work group. As the most prestigious members of the group, they can bring numerous pressures to bear on prosecutors, defense attorneys, and others. A verbal rebuke to a defense attorney in open court or an informal comment to the head prosecutor that the assistant is not performing sat- isfactorily are examples of judicial actions that can go a long way toward shaping how the courtroom work group disposes of cases.

The amount of influence judges actually exert on the other members of the courtroom work group varies. Some judges are active leaders of the courtroom work group; they run “tight ships,” pressuring attorneys to be in court on time, for example. These judges participate fully in court- house dynamics. On the other hand, some judges have a laissez-faire attitude, allowing the attorneys as many continuances as they request.

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 203

In large courts, “judge shopping” is a common practice. Through the strategic use of motions for continuances and motions for a change of judge, defense attorneys maneuver to have their clients’ cases heard by the judge they perceive as most favorable for their particular cases. Such judge shopping is the most direct evidence of variations among judges. Although organizational pressures work to provide a certain degree of consistency among judges, any examination of a multi-judge court immediately shows that judges differ in terms of the sentences they hand out, the way they run their courtroom, and the number of cases they have pending. Knowledge of these judicial differ- ences is often as necessary for the practicing attor- ney as mastery of the law and rules of procedure.

VARYING ROADS TO A JUDGESHIP

Which lawyers are selected to be judges is determined by both formal selection methods and informal pro- cedures. Table 8.2 presents the major formal selection methods used in the states, including partisan elec- tions, nonpartisan elections, merit selection (usually referred to as the Missouri Bar Plan), and appointment. Note, though, that some states use different selection procedures for different levels of the judiciary.

However, formal selection methods (law on the books) are far less important than informal methods (law in action) in determining which lawyers reach the bench. How selection is conducted establishes the formal routes to who becomes a judge; however, when a judicial vacancy occurs, interim selection methods are needed. And while appointment by governors and merit selection predominate in filling temporary vacancies, who is ultimately selected to serve on an interim basis significantly affects the final outcome for filling a vacancy permanently (Holmes & Emrey, 2006). We will examine the three major methods of judicial selection—executive appointment, popular election, and merit selection—and explore the influ- ence of both formal and informal selection practices.

Executive Appointments

In the early years of the Republic, judges were selected by executive appointment or elected by the

legislature. Today, these methods of judicial selec- tion are used in only a handful of jurisdictions.

Three states use election by the legislature, and a few others still use appointment by the gover- nor. All Article III federal judges are selected by executive appointment. A number of studies have examined the political dynamics involved in the selection of federal judges (Goldman, 1997; Holmes & Savchak, 2003).

The U.S. Constitution specifies that the presi- dent has the power to nominate judges with the advice and consent of the Senate. Based on this con- stitutional authorization, both the president and the Senate have a voice in the selection process. When a judgeship becomes vacant, the Office of Legal Policy in the U.S. Department of Justice and the White House Counsel search for qualified lawyers by consulting party leaders of the state in which the vacancy has occurred, campaign supporters, U.S. senators, and prominent members of the bar. This initial private screening has been known to take a year or longer because of conflicts within the president’s party regarding who should be selected (Goldman, Slotnick, & Schiovania, 2011).

After the president has submitted a nomination for a vacant judicial post, the process shifts to the Senate. Most nominations are routine. After a hear- ing by the Senate Judiciary Committee, the full Sen- ate usually confirms, most often without a negative vote being cast. If the nomination is controversial, the committee hearings and Senate vote become the focus of great political activity. Over the past decade, major partisan wrangling has surrounded nominations to the federal bench. Although most of President George W. Bush’s nominees to the fed- eral bench were confirmed, Democrats filibustered some nominations to the Courts of Appeals, thus preventing confirmation (Neubauer & Meinhold, 2013). More recently, Republicans in the U.S. Senate have held up a number of President Obama’s nomi- nations to the federal bench, resulting in a rising number of vacancies even as caseloads are rising (Wheeler, 2012).

Senators also influence federal judicial selec- tions through the informal power of senatorial courtesy. Senators expect to be consulted before the president nominates a person for a judicial vacancy from their state if the president belongs to the same party. A senator who is not consulted may declare the nominee personally unacceptable, and senators

L A W S O N , A N G E L A 6 8 5 3 B U

204 Part II / Legal Actors

a The following eight states use merit plans only to fill midterm vacancies on some or all levels of court: Alabama, Georgia, Idaho, Kentucky, Minnesota, Montana, Nevada, and North Dakota. b California uses gubernatorial appointments for appellate courts, but nonpartisan elections for trial courts. c Merit selection is used for appellate judgeships, while nonpartisan elections are used to fill trial court judgeships. d Merit selection is used for appellate judgeships, while different counties use a variety of approaches to filling trial court judgeship, including merit selection, partisan elections, and nonpartisan elections. e Merit selection is used for appellate judgeships, while either merit selection or partisan elections are used to fill trial court judgeships in different districts.

SOURCE: American Judicature Society. Judicial Selection Methods in the States, 2009. Available online at http://www.ajs.org/selection/sel_state- select-map.asp.

from other states—finding strength in numbers— will follow their colleague’s preferences and not approve the presidential nomination. Through this process, senators can recommend persons they think are qualified (former campaign managers come to mind) or exercise a direct veto over per- sons they find unacceptable (political enemies, for example). But the influence of senators in gen- eral over judicial nominations has been declining (Binder & Maltzman, 2004).

Overall the selection process produces federal judges with two defining attributes: They belong to the president’s party, and they have often been active in politics.

Although the American Bar Association (ABA), the national lawyers’ association, enjoys no formal role in the screening of nominees for the federal bench, it has historically played an influ- ential role through its Standing Committee on the Federal Judiciary. The committee traditionally

Merit

Selectiona

Gubernatorial (G)

or Legislative (L)

Appointment

Partisan

Election

Nonpartisan

Election

Combined Merit

Selection and Other

Methods

Alaska California (G)b Alabama Arkansas Arizonac

Colorado Maine (G) Illinois Californiab Floridac

Connecticut New Jersey (G) Louisiana Georgia Indianad

Delaware South Carolina (L) Michigan Idaho Kansas5

District of Columbia

Virginia (L) Ohio Kentucky Missourie

Hawaii Pennsylvania Minnesota New Yorke

Iowa Texas Mississippi Oklahomac

Maryland West Virginia Montana South Dakotae

Massachusetts Nevada Tennesseee

Nebraska North Carolina

New Hampshire North Dakota

New Mexico Oregon

Rhode Island Washington

Utah Wisconsin

Vermont

Wyoming

TABLE 8.2 JUDICIAL SELECTION IN THE STATES

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 205

was generally successful, as were his predecessors, in securing the confirmation of his nominees to the federal bench (Dancey, Nelson, & Ringsmuth 2011). Indeed, his two nominations to the U.S. Supreme Court were confirmed after threats of filibusters dis- sipated. Likewise, President Obama has been suc- cessful in securing the confirmation of his nominees to the Supreme Court and most of his other nomi- nations to the federal bench. But after the 2010 elec- tion, the pace of confirmation has slowed because 60 votes are required to end a filibuster in the Senate, and Republicans have used this voting rule to delay or defeat some of the president’s nominations.

State appointive systems resemble the presiden- tial system for selecting federal judges, except that with gubernatorial appointments no equivalent of senatorial courtesy exists at the state level. As with federal appointees, governors tend to nominate those who have been active in their campaigns. At times, governors have been known to make appoint- ments to strengthen their position within a geo- graphical area or with a specific group of voters. In recent years, some governors have allowed bar asso- ciations to examine the qualifications of potential nominees. State bar associations are gaining influ- ence, much like the ABA influence on federal judicial appointees. However, governors have greater inde- pendence to ignore bar association advice.

Election of Judges

None of the original U.S. states elected its judges (Phillips, 2009). Today, however, approximately 30 states use some sort of election mechanism to select at least some of their judges (see Table 8.2). The concept of an elected judiciary is a uniquely American invention for democratizing the politi- cal process, one that arose during Andrew Jack- son’s presidency. It is based on the notion that an elitist judiciary does not square with the ideology of a government controlled by the people (Dubois, 1980; Streb, 2007). According to this philosophy, there should be no special qualifications for public office; the voters (not the elites) should decide who is most qualified.

In a few states, judges are selected using partisan elections (the nominee’s political party is listed on the ballot). Historically, this approach enabled party bosses to use judicial posts as patronage to reward the party faithful. The Supreme Court ruled that

investigated potential judicial nominees by con- sulting with members of the legal profession and law professors. It then ranked the candidates as “exceptionally well qualified,” “well qualified,” “qualified,” or “unqualified.” Although the presi- dent has the sole power to nominate, most presi- dents did not wish to name someone who would later be declared unqualified. Therefore, the dep- uty attorney general usually sought the ABA’s recommendations prior to nomination, and some potential nominees were eliminated in this way. However, the role of the ABA has diminished over the past decade or so in light of alleged political biases in the ABA’s ratings of candidates, as well as criticisms against its “special access” in the nomination process because of the ABA’s posi- tions on controversial issues:

In 1997, Senator Hatch ended the ABA’s “quasi-official”

role in the Committee process, though ABA representa-

tives continued to testify in confirmation hearings. In

2001, President George W. Bush ended the process of

giving the ABA special access to proposed nominees’

names in advance of nomination or awaiting its evalu-

ation before making nominations. Although it may be

more difficult to elicit candid comments once a nomi-

nee is announced, the ABA continues to provide evalu-

ations of whether nominees are professionally quali-

fied, and at least some members of the Senate Judiciary

Committee continue to consider the ABA evaluation.

(Georgetown Law Journal, 2007, pp. 1037–1038)

President Obama restored the traditional role of the ABA and seeks its rankings prior to making a public announcement of a candidate (Neubauer & Meinhold, 2013).

In recent years, the role of the ABA has been eclipsed by that of other interest groups (Scherer, Bartels, & Steigerwalt, 2008). The Federalist Society, Common Cause, NAACP, and the National Wom- en’s Political Caucus are examples of interest groups that seek to influence who is selected and confirmed for a federal judgeship. Interest groups from both sides of the ideological spectrum appear to have decided that federal judgeships are critical to their policy agenda and have begun pulling out all the stops to try to influence who is nominated and who is confirmed. (Bell, 2002; Scherer, 2005; Steigerwalt, 2010). Despite the rancorous debate, President Bush

L A W S O N , A N G E L A 6 8 5 3 B U

206 Part II / Legal Actors

Merit Selection

“Remove the courts from politics” has been the long-standing cry of judicial reformers, who oppose popular election of judges because voters have no way to know which lawyers would make good judges. Moreover, election suggests the appearance of impropriety because it provides an incentive for judges to decide cases in a popular manner. To cure these ills, legal reformers advocate merit selection, also known as the Missouri Bar Plan because that state was the first to adopt it in 1940.

Merit plans are actually hybrid systems incorpo- rating elements from other judicial selection meth- ods: gubernatorial appointment, popular election, citizen involvement, and—most important—a for- malized role for the legal profession. Merit selection involves the establishment of a judicial nominating commission composed of lawyers and laypersons, who suggest a list of qualified nominees (usually three) to the governor. The state’s chief executive makes the final selection but is limited to choosing from those nominated by the commission.

After a fixed period of service on the bench, the new judge stands uncontested before the vot- ers in a retention election. The length of the ini- tial, probationary appointment varies greatly from state to state, from 1 year in some states to 10 or 12 years in others (American Judicature Society, 2009). The sole question in such a retention elec- tion is, “Should Judge X be retained in office?” If the incumbent judge wins a majority of affirmative votes, he or she earns a full term of office (usually 6, 8, or 10 years). Each subsequent term is secured through another uncontested retention ballot. Most judges are returned to the bench by a healthy mar- gin, often receiving 70 percent of the vote. Only a handful of judges have been removed from office (Aspin, 2011). Over a 30-year period, for example, 50 court judges from trial and appellate courts were defeated in 3,912 retention elections in 10 states (meaning that only 1.3% were not retained); 28 of these defeats occurred in Illinois, which requires a judge to receive a minimum of 60 percent of the popular vote to remain on the bench (Aspin, Hall, Bax, & Montoya, 2000; see also, Brody, 2008).

Although backers of the Missouri Bar Plan con- tend that it will significantly improve the judges selected and remove the courts from politics, stud- ies of the merit selection system in operation have

party control is constitutional (New York State Board of Elections v. Lopez Torres, 2008). But in the majority of states that elect their judges, nonpartisan elections (no party affiliations are listed on the ballot) are used. Nevertheless, even where nonpartisan elec- tions are used, partisan influences are often present (law in action); judicial candidates are endorsed or nominated by parties, receive party support dur- ing campaigns, and are readily identified with party labels.

Traditionally, campaigns for American judge- ships have been low-key, low-visibility affairs marked by the absence of controversy and low voter turnout (Streb, 2007). Judicial candidates often stressed general themes in their campaigns, such as doing justice and being tough on criminals, thus providing voters few guides to possible dif- ferences between the candidates. The general lack of information and the low levels of voter interest give incumbent judges important advantages in running for reelection. The prestigious title “Judge” is often listed on the ballot in front of the judge’s name. For this reason, few local lawyers wish to challenge a sitting judge. Once a judge is selected, either through an election or an appointment to fill a midterm vacancy, the chances of being voted out of office are small. Few sitting judges are even opposed for reelection; of those challenged, few are ever voted out of office (Dubois, 1984; Streb, Fred- erick, & Lafrance, 2007). Indeed one study found that over three-quarters of elections fail to provide voters a choice (Nelson, 2011).

Times are changing, however. In recent years, some judicial elections have become nastier, noisier, and costlier (Barnes, 2007; Bonneau, 2007; Schotland, 1998). Mudslinging and attack adver- tising have become common in some states (Arbor & McKenzie, 2011). Interest groups backed by business or plaintiff lawyers are spending millions to back their candidates (Goldberg, Holman, & Sanchez 2002). Thus, today’s races, particularly at the state high-court level, are hard-fought affairs (Bonneau & Hall 2003; Peters 2008). Moreover, the U.S. Supreme Court ruled that candidates for judi- cial office are free to announce their views on key issues (Republican Party v. White, 2002). One con- sequence is that incumbent judges are now being defeated for reelection at a higher rate than in the past (although at the trial level, incumbents still often win).

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 207

Which System Is Best?

In evaluating which selection system is best, a key criterion is whether one system produces bet- ter judges than another. Judicial folklore has long held that particular systems may produce supe- rior judges. Several studies have systematically analyzed this folklore. Because it is impossible to evaluate a normative concept such as “best,” it is necessary to rephrase the question empirically. That is, do judges selected by one method differ from those selected by others? Researchers use measurable judicial credentials, such as education and prior legal experience, as indicators of judicial quality. These studies point to two different types of conclusions.

From the standpoint of individuals who wish to become judges, methods of judicial selection make a difference, but not much. When legislators appoint judges, it is quite clear that former legis- lators are more likely to be selected than in other systems. Similarly, when the governor appoints, the system benefits those who have held state office (such as legislators). By contrast, elective systems elevate to the bench a higher proportion of per- sons who have held local political office—which typically means the district attorney (DA). Under the Missouri Bar Plan and elective systems, former DAs are more often selected as judges. When the executive or legislature makes the selection, fewer DAs become judges. From a broader perspective, methods of judicial selection have only a marginal influence on the types of lawyers who become judges. Whether elected by the voters, appointed by the governor, or selected through merit plans, state judges are more alike than different. In terms of personal background characteristics such as prior political experience, ties to the local commu- nity, political party affiliation, and quality of legal education, the systems of judicial selection do not appear to produce very different types of judges (Flango & Ducat, 1979; Goldschmidt, Olson, & Eckman, 2009; Hurwitz & Lanier, 2003).

But what of the quality of judging? Does one method of judicial selection produce higher-quality judges than another? Scholars are divided on this question. Some maintain that no systematic evi- dence proves that one selection system produces better judges than another (Choi, Gulati, & Posner, 2008; Emmert & Glick, 1987). Others argue that

reached different conclusions. The politics of judicial selection have been altered but not removed; in fact, removing politics does not seem possible. What the reformers presumably mean is the removal of “parti- san” politics. In operation, the Missouri Bar Plan has reduced the influence of political parties while at the same time greatly increased the power of the legal profession (Taylor, 2009; Watson & Downing, 1969).

Merit selection has won increasing acceptance. A majority of states use the merit system, at least at some level of their state court system (see Table 8.2). In addition, a number of other states have actively considered adopting merit selection. As evidence of the growing importance of merit selection, all states that have altered judicial selection techniques in recent years have adopted some form of the Mis- souri Bar Plan. Even in states that have not formally adopted merit selection, governors often use “vol- untary merit plans” to fill temporary vacancies (Dubois, 1980; Holmes & Emrey, 2006). Typically, though, adoption of merit selection requires a dif- ficult statewide constitutional amendment, which explains why few jurisdictions have adopted merit selection in recent years (Anderson, 2009).

CONSEQUENCES OF JUDICIAL SELECTION

The debate over the best method for selecting state judges has raged for decades. Partisan and nonpar- tisan elections, used in a majority of states, are sup- ported by those who believe elections are the most appropriate method for guaranteeing the popular accountability of state judicial policymakers. Critics, on the other hand, assert that elections are funda- mentally inconsistent with the principle of judicial independence, which is vital for neutral and impar- tial judicial decision making. Less philosophically, these competing perspectives find expression in ten- sion between the legal profession and political par- ties over influencing judicial selections. The different methods of judicial selection heighten or diminish the influence of the bar or the influence of political parties. This debate indicates that methods of judi- cial selection are perceived to have important con- sequences. Three topics stand out. One centers on which system is “best.” The second relates to simi- larities in judges’ backgrounds. The third involves efforts to produce a more diverse judiciary.

L A W S O N , A N G E L A 6 8 5 3 B U

208 Part II / Legal Actors

“judicial quality is lower in states that utilize elec- tions to select their judges” (Sobel & Hall, 2007). But putting aside the issue of “quality” in light of its subjective nature, it is important to note the evidence that judges selected in partisan elections react to public opinion with an eye toward their own reelections, whereas those appointed to office are free of this constraint (Brooks & Raphael, 2003; Pinello, 1995). This difference may play a critical role in whether judges are willing to overturn capi- tal convictions (Brace & Boyea, 2007). Evidence also exists that judicial-selection methods may influ- ence case outcomes in particular types of cases. For example, Gryski, Main, and Dixon (1986) reported that decisions upholding sex-discrimination claims occurred far more frequently in states with appointive systems than in those with elec- tion systems. Pinello (1995) found that appointed judges reversed criminal convictions for constitu- tional violations at a significantly higher rate than did elected judges (see also, Epstein, Knight, and Shvetsova, 2002). And Helland and Tabarrok (2002), using a large sample from cases across the country, found that tort awards for in-state plaintiffs against out-of-state defendants were larger in jurisdictions in which judges were elected. Thus, it does appear that the method of judicial selection matters. Which is “best,” however, is a matter of interpretation.

Similarities in Judges’ Backgrounds

Although the United States uses a variety of meth- ods for selecting judges, it is important to note that judges share some important similarities, which may be of even greater importance than the differ- ences. In general, judges are men from the upper middle class, and their backgrounds reflect the attri- butes of that class: They are more often White and Protestant, and they are better educated than the average American. Increasingly, though, judges are beginning to more closely resemble the American electorate. Judicial officers on state high courts of last resort, for example, are increasingly women and less likely to be high-status Protestants (Bonneau, 2001).

Another similarity among judges is that most were born in the community in which they serve. Trial court judges are usually appointed from par- ticular districts; the persons appointed were often born in that area and attended local or state colleges before going on to a law school within the state.

Finally, judges are seldom newcomers to politi- cal life. Almost three out of four state high court judges have held a nonjudicial political office. Trial court judges also have held prior office—most often district attorney or state legislator. Eighty percent of federal judges had prior government experience. Before becoming judges, they had some familiarity with the range of public issues that government as well as courts must address. Because of these fac- tors, few political mavericks survive the series of screens that precede becoming a judge. The pro- cess tends to eliminate those who hold views and exhibit behavior widely different from the main- stream of local community sentiment.

Diversity and the Judiciary

The United States is experiencing a revolutionary change in the composition of the bench. The domi- nant profile of judges as White males has begun to change. Since the presidency of Jimmy Carter, an increasing number of federal court vacancies have been filled with female judges, a pattern evident during both Republican and Democratic admin- istrations (Goldman & Saronson, 1994; Goldman & Slotnick, 1999; Goldman, Slotnick, Gryski, & Schiavoni, 2007). Eighteen percent of President Clinton’s nominations to the federal bench were women (Spill & Bratton, 2001). Republican Presi- dent George W. Bush was also particularly vocal about his goal of diversity (Solberg, 2005). And Democrat Barack Obama demonstrated his com- mitment to judicial diversity early in his presidency by nominating the first Latina to the U.S. Supreme Court, Sonia Sotomayor. Later he nominated Elena Kagan, bringing the number of women on the nation’s highest court to three. And nearly three- quarters of President Obama’s nominees to the fed- eral bench who have been confirmed by the Senate have been women or minorities. As a result, the Federal Judicial Center (2012b) reports that of the 1,208 sitting federal judges (both active and senior judges), 336 (27.8 percent) are women, 177 (14.7 percent) are African-American, 105 (8.7 percent) are Hispanic, and 24 (2 percent) are Asian-American. Only 2 federal judges are of Native-American decent and only 4 are openly gay.

The picture with regard to state judges is signifi- cantly more complicated. Until the 20th century, the number of women judges in America was so small

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 209

held that the Voting Rights Act of 1965, as amended in 1982, applies to judicial elections (Chisom v. Roemer and Houston Lawyers’ Association v. Attorney Gen- eral of Texas). These rulings pave the way for major changes in the 41 states, particularly in the South, that use elections for at least some of their judges (Smith & Garmel, 1992). On the following page, the "Case Close-Up" explores diversity on the bench.

JUDGING THE JUDGES

Judicial-selection techniques attempt to recruit Solomon-like figures to the bench. Judicial-education programs help beginning judges learn their new roles and keep veteran judges abreast of changes in the law. The troublesome problem remains, however: What should be done about unfit judges? Despite the lack of clarity in what attributes a good judge should pos- sess, one central conclusion stands out: A few judges do not fulfill minimal standards. A few are senile, prejudiced, vindictive, tyrannical, lazy, or sometimes corrupt. Proper judicial conduct is indispensable to people’s confidence in their judiciary, confidence that itself is indispensable to the rule of law. In recent years, such confidence has been eroded by questions of judicial misconduct in a variety of states, includ- ing California, Illinois, Florida, Louisiana, New York, Oklahoma, Rhode Island, Pennsylvania, and New Hampshire.

Judicial Independence

A critical issue in judging the judges is how to devise a system for removing unfit judges while at the same time guaranteeing judicial independence. At times, critics attempt to remove a judge from office not because of his or her misconduct, but solely because of displeasure with the substance of the judge’s deci- sions. Clearly, protections against unpopular court rulings constitute the hallmark of an independent judiciary. Yet judicial independence is not an end in itself. As University of Chicago Law Professor Philip Kurland has put it, “The provisions for securing the independence of the judiciary were not created for the benefit of the judges, but for the benefit of the judged” (quoted in Byrd, 1976, p. 267). The “Courts, Controversy, and the Administration of Justice” feature on page 211 explores the topic of whether judicial independence is being undermined.

that they could be counted on the fingers of one hand. The 20th century began witnessing changes, though not very quickly. By 1950, women had achieved at least token representation on the bench (Carbon, 1984). Today, the National Association of Women Judges (2012) reports that of the roughly 17,500 state court judges in the United States, 4,711 (27 percent) are women. As the number of women serving on the state and federal benches has risen, there has been an understandable interest in prob- ing the “difference” women may bring to the bench (Martin, 1993). Speculation by some has suggested that female judges are likely to be more liberal than male jurists. Some studies reported gender differ- ences in areas like women’s rights claims (Palmer, 2001), self-defense by women in homicide cases, and whether to award alimony (Coontz, 2000). But often the differences are at best small.

But other studies find no gender differences among judges (Miller & Maier, 2008). A study of Justice Sandra Day O’Connor, the first woman to serve on the U.S. Supreme Court, concludes, “Over- all, the findings presented here do very little to sup- port the assertion that O’Connor’s decision making is distinct by virtue of her gender” (Davis, 1993, p. 139). Similarly, an analysis of more than 2,100 written opinions indicated that male and female federal district court judges were not significantly different when it came to their decisions (Stidham & Carp, 1997). These findings have been supported by a study of judicial voting in thousands of cases that show that in most areas of law, the decisions of female and male judges are rarely different. In 12 out of 13 areas of law (sex discrimination is the only exception) male and female judges do not differ in their decisions (Boyd, Epstein, & Martin 2010).

In 1973, slightly more than 1 percent of state judges were African-American; by the mid- 1980s, the percentage had increased to 3.8 percent (Graham, 1990). Today, that figure stands at roughly 5.9 percent (American Bar Association, 2009). The underrepresentation of African-Americans on the bench is partially a reflection of the paucity of African-American attorneys. But underrepresenta- tion is also a product of how judges are selected. African-American judges are more likely to be found in states using appointment by either the governor or the legislature; they are less likely to be selected in states using elections (American Judicature Soci- ety, 2009; Graham, 1990). In 1991, the Supreme Court

L A W S O N , A N G E L A 6 8 5 3 B U

210 Part II / Legal Actors

Janice Clark had always wanted to be a judge. As a

practicing lawyer, she seemed to possess the educa-

tion and experience necessary to don the black robes,

but she still faced an insurmountable barrier. The

problem was not gender—after all, women are being

elected to the bench on a regular basis all over the

United States. Rather, the insurmountable barrier was

race. White voters rarely vote for African-American

candidates; indeed, as an African-American candidate

for a judgeship, Clark received only 3.2 percent of the

White vote. So, as lawyers often do, she filed suit in

the U.S. District Cour t for the Middle District of Loui-

siana. Joined by African-American voters and lawyers

throughout Louisiana, her class action lawsuit alleged

that electing judges from multimember districts diluted

African-American voting strength in violation of the

Voting Rights Act.

The lawsuit was joined by local civil rights groups,

as well as several national organizations, including the

Voter Information Project and the Lawyer’s Commit-

tee for Civil Rights Under Law. The nominal defen-

dant was the governor of the state and all other

government officials connected with judicial elections.

Also appearing for the defendants were attorneys

representing the Louisiana District Judges Associa-

tion and the Orleans Trial Judges Association (Clark v.

Edwards, 1988).

U.S. District Judge John Parker’s opinion stressed

that of the 156 district court judgeships in Louisiana,

only 2 were held by African-Americans. The reason was

that judgeships were elected from the entire judicial

district, which had the effect of “diluting black voting

strength,” a violation of the Voting Rights Act.

This case was one of several filed in the federal

courts, and the underlying legal issue was eventually

settled at the appellate level in Chisom v. Roemer (1991)

and Houston Lawyers’ Association v. Attorney General of

Texas (1991). The basic legal issue hinged on an inter-

pretation of the Voting Rights Act of 1965 as amended

in 1982. The Voting Rights Act covers representatives.

Clearly, legislators are considered representatives, but

what of judges? The Fifth Circuit said no, but Chisom

held otherwise, finding that judges were indeed covered

by the Voting Rights Act.

Crossing this impor tant threshold means that, in

drawing election districts (either for legislatures or

judges), the lines may not dilute minority voting. This

conclusion was based on repeated findings of the

existence of racially polarized voting, which in an

election contest pitting an African-American candi-

date against a White one, White voters were ver y

unlikely to cast their ballot for the African-American

candidate (Engstrom, 1989). But the future of this

line of decisions is cloudy. In a 5-to-4 decision, the

Supreme Cour t ruled that race is an impermissible

consideration in drawing congressional voting dis-

tricts (Miller v. Johnson, 1995). Nonetheless, challenges

to judicial election and selection procedures under

the Voting Rights Act have been mounted in 15 states

(Scruggs, Mazzola, & Zaug, 1995).

Janice Clark’s legal argument eventually became

the law of the land. The series of U.S. Supreme Cour t

cases firmly established the principle that judges can-

not be elected in ways that place minority candidates

at an unfair disadvantage. But the eventual impact is

far from cer tain. Each of the states with a significant

minority population differs somewhat in tradition

and method of judicial selection, factors that shape

the emerging systems of judicial selection. But for

Janice Clark, the outcome was both immediate and

positive. She ran again for the major trial cour t bench

in Baton Rouge and won, taking the oath of office on

Januar y 1, 1993. When a high-ranking state police of-

ficial publicly complained about one of her decisions,

she took to the bench and scolded the official, ex-

plaining that the problem was not her interpretation

of the law, but how poorly the legislature had written

the state’s gaming law in the first place. Her unusual

candor aside, it will be many years before we know

whether minority judges have a long-term impact on

the type of justice meted out in cour thouses across

America.

CHISOM ROEMER AND DIVERSITY ON THE BENCH C A S E C L O S E - U P

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 211

While a candidate for the 2012 Republication nomina- tion for president, former Speaker of the House Newt Gingrich suggested that fed- eral law enforcement agents should arrest federal judges who make controversial decisions in order to compel the judges to justify their decisions before congres-

sional hearings (Gardner & DeLong, 2011). Even though a number of conservatives felt that Gingrich had gone too far, it did symbolize that attacks upon “activist judges” is a recurring theme in the United States.

The most recent Republican attacks came shortly after three justices of the Iowa Supreme Court were voted out of office. A socially conservative group called “Iowa for Freedom” targeted them because they were the only ones facing the electorate during the fall after that court had unanimously voted to legalize same-sex marriages in the state (Aspin, 2011).

In an adversary system, a judge’s decision often fails to find favor with the losing party. In the modern era, the losing party is often quick to label the judge an activist. The term activist judges has no legal meaning, but politically it stands for judges who make unpopular decisions. Some worry that in the modern era, attacks on judges seriously undermine judicial independence.

In recent years, both state and federal judges have been the subject of attack (Raftery, 2006).

Justice Penny White of the Tennessee Supreme Court was voted off the bench in a retention election because she voted in a death penalty case to grant the defendant more leeway to present evidence that might mitigate the sentence imposed in the case (Bright, 1997).

Jay Bybee, U.S. Court of Appeals for the Ninth Circuit, has been targeted by some for impeachment because of the legal opinions he wrote while head of President Bush’s Office of Legal Counsel about harsh treatment of terrorist suspects (Justice at Stake, 2009a).

The administration of George W. Bush harshly criti- cized U.S. District Judge Paul Cassell for unduly lenient sentencing even though as a law professor, Cassell was one of the leading academic critics of the Warren Court (Willing, 2003).

Attacks on the federal judiciary are hardly new. President Jefferson tried to remove Justice Samuel Chase as part of a campaign to “reform” the federal judiciary. In the 1960s, a nationwide campaign was launched by the ultraconservative John Birch Society to impeach Chief Justice Earl Warren. Not surprisingly, attacks on federal judges most often occur during election years (Segal, 2000). Thus, during the 1968 presiden- tial election, candidate Richard Nixon attacked the Supreme Court, promising to remake the high court in his own image. But almost invariably, challenges to judicial independence fail (Friedman, 1998). Opposition campaigns are most likely to succeed when there is a clear issue that is important to a large portion of voters (Aspin, 2011).

Attacks on the judiciary, though somewhat predictable, can still exert a chilling effect on judicial independence. Former Chief Justice William Rehnquist voiced concern along these lines: “There is a wrong way and right way to go about put- ting a popular imprint on the judiciary” (Carelli, 1996). In the same vein, law professor Stephen Burbank (1987) reminded us that judicial independence is a means to an end rather than an end in itself. Criticism is one thing; undermining judicial independence is another. “Courts are not independent when state judges are voted off the bench because of unpopular decisions by their courts, and when federal judges reverse de- cisions or resign from the bench after a barrage of criticism” (Bright, 1997, p. 167). Judges are concerned that the increas- ing tendency to verbally attack judges appears to be related to increasing physical threats against judges. According to the U.S. Marshals Service, threats and harassments against federal judges increased 89 percent in just 5 years (Coyle, 2009).

Concerned that recent attacks on judges threaten to alter the delicate balance between judicial indepen- dence and judicial accountability, the American Judicature Society has created the Center for Judicial Independence to respond to unwarranted attacks on the judiciary and

COURTS,

C O N T R O V E R S Y,

& THE

ADMINISTRATION

of JUSTICE

IS JUDICIAL INDEPENDENCE BEING UNDERMINED?

Continued on next page

L A W S O N , A N G E L A 6 8 5 3 B U

212 Part II / Legal Actors

Judicial Misconduct

Systems for removing or disciplining unfit judges must not only strike a balance between judicial accountability and judicial independence, but they must also grapple with the wide range of misbehavior encompassed by the phrase “judi- cial misconduct” (Begue & Goldstein, 1987). Most directly, judicial misconduct involves corruption. In recent years, judges in big cities such as Chicago, New York, and Philadelphia have been accused of (and sometimes convicted of) criminal offenses such as taking bribes and fixing traffic tickets. But not all judicial misconduct is so venal; sometimes it involves improper or bizarre behavior on the bench (Goldschmidt, Olson, & Ekman, 2009; Wice, 1991). Exhibit 8.1 summarizes some recent cases that illus- trate the range of behavior.

One of the most difficult situations involves judges of advanced years whose mental capacity has become impaired. After years of dedicated service, with exemplary conduct on the bench and no hint of scandal, a judge might become senile. Accordingly, a growing number of states impose mandatory retire- ment ages for judges. The Supreme Court has ruled that state laws requiring judges to retire at age 70 do not violate the federal Age Discrimination in Employ- ment Act (Gregory v. Ashcroft, 1991). In another widely followed case, the nation’s highest court upheld the prison sentence of David Lanier, a state judge from Dyersburg, Tennessee. Judge Lanier had been con- victed in federal court of sexually attacking five women in his courthouse. He had not been pros- ecuted in state court, nor had the state’s conduct com- mission taken action—many said because the judge was politically well-connected and his brother was the county prosecutor. The decision in United States v. Lanier (1997) strengthened federal civil rights laws (Chapter 3). The “Key Developments” feature on the

following page summarizes some of the leading U.S. Supreme Court cases affecting judges.

Formal methods for removing unfit judges—recall elections and impeachment proceedings—are gener- ally so cumbersome that they have seldom been used. Moreover, these techniques are better directed at cor- rupt judges than at those whose behavior is improper or whose advanced age has caught up with them. A more workable method for dealing with judicial mis- conduct is the judicial conduct commission.

State Judicial Conduct Commissions

In 1960, California became the first state to adopt a modern and practical system for disciplining its judges. In response to the mounting public clamor for accountability on the part of government offi- cials, every state has followed California’s pioneer- ing lead (Brooks, 1985). Under the California model, a judicial conduct commission is created as an arm of the state’s highest court. The commission, made up of judges, lawyers, and prominent laypersons, investigates allegations of judicial misconduct and, when appropriate, hears testimony.

If the commission finds in favor of the judge, the investigation is closed and the matter is per- manently concluded (Miller, 1991). Confidentiality is essential, lest a judge’s reputation be tarnished by a crank complaint. Many complaints are issued by disgruntled litigants, whose charges amount to simple displeasure that the judge did not rule in their favor (Gray, 2007). If the complaint has merit, the commission may recommend a sanction of pri- vate admonishment, public censure, retirement, or removal. The state supreme court retains the final power to discipline errant judges (Gardiner, 1986).

Although commissions are armed with the potent weapon of a public recommendation, they prefer to act more informally. If the information gathered

to sponsor public education programs on relevant issues (“Issues in Judicial Independence and Accountability,” 2004). Similarly, Justice at Stake (http://www.justiceatstake. org) has launched a campaign to protect fair and impartial courts from outside political pressures. Some attacks on judges appear to be ideological in nature. Retired Justice

Sandra Day O’Connor wrote, “What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice” (“After Death Threats,” 2009).

What do you think? Where do you draw the line be- tween fair criticism of judges and intimidation?

Continued from previous page

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 213

suggests judicial misconduct, the commission holds a confidential conference and discusses the matter with the judge, who has an opportunity to rebut the charges. The commission may try to correct the matter; a judge with a substance-abuse problem, for example, is encouraged to enroll in a treatment program. If the problems are serious, continuous, or not immediately solvable, the commission usually seeks to force the judge’s voluntary retirement. The informal pressures and the threat of bringing public proceedings are often powerful enough to force the judge in question off the bench. The complaints and investigations remain confidential unless the com- mission finds it necessary to seek a reprimand or removal before the state supreme court.

Federal Conduct and Disability Act

In 1980, Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act, which lays out a precise mechanism for acting on complaints against federal judges. Complaints are initially heard by the judicial councils (the admin- istrative arm of each U.S. court of appeals). Most result in either a finding of no misconduct or the imposition of nonpublic sanctions. However, if substantial evidence of serious misconduct exists, the judicial council sends a written report to the Judicial Conference, which may recommend that the U.S. House of Representatives begin impeach- ment procedures.

A veteran town justice in upstate New York was removed from the bench for jailing five defendants without affording them due process (Stashenko, 2012).

A Luzerne County, Pennsylvania, judge, Mark Ciavarella, Jr., was convicted of 12 criminal counts, including racketeering, receiving bribes, and conspiracy, for his involvement in a scandal that became known as “kids-for-cash.” He and a fellow judge, Michael Conahan, accepted nearly $2 million in bribes from developers of juvenile detention centers and, in turn, then sentenced juvenile offenders to those facilities. Shockingly, Ciavarella sentenced thousands of teens to these centers for minor violations that almost never result in sentences of juvenile incarceration, such as a first offense for being in a schoolyard scuffle. He often did so by violating the constitutional rights of the accused teens, ranging from denying them counsel to the right to enter a voluntary, intelligent, and knowing plea. He was sentenced to 28 years in prison in August 2011. Pennsylvania expunged more than 6,000 records of youths Ciavarella sentenced, some for crimes as small as steal- ing a jar of nutmeg or setting up a MySpace page mocking a school principal (Pitts, 2011).

Since 2008, at least 16 judges in Georgia have resigned rather than face ethics hearings before the Judicial Qualifications Commission (Torpy & Rankin, 2010).

David Bradfield of the 36th District announced his retirement, effective immediately, in the face of an indefinite suspen- sion following a spat with a Detroit deputy mayor over a parking place (Schmitt, 2006).

Rosemarie Williams, the presiding judge of New Jersey’s Somerset County’s General Equity Part, was reassigned to another county after her conviction for driving under the influence (Toutant, 2006).

Judge Alan Green of Louisiana’s 24th judicial district was sentenced to 51 months in prison after being convicted of tak- ing $10,000 in cash from a local bail bondsman (Krupa, 2006).

Philadelphia Traffic Court Judge Willie Singletary was charged with misconduct after a YouTube video showed him solicit- ing campaign funds (Elliott-Engel, 2008).

Chief Judge Sharon Keller of the Texas Court of Criminal Appeals was charged with incompetence, violating her duties, and casting public discredit on the judiciary for refusing to delay the closing of the clerk’s office for an emergency appeal for a man facing the death penalty. The man was executed several hours later (Kovach, 2009).

EXAMPLES OF ERRANT STATE JUDGESExhibit 8.1

C e

n g

a g

e L

e a

rn in

L A W S O N , A N G E L A 6 8 5 3 B U

214 Part II / Legal Actors

Article II of the Constitution provides for the removal of the president, vice president, or civil officers of the United States—including federal judges—for crimes of “treason, bribery, or other high crimes and misdemeanors.” The House must first vote articles of impeachment specifying the spe- cific charges. Impeachment does not mean convic- tion, but rather allegations of wrongdoing—roughly equivalent to a grand jury indictment. The trial on the articles of impeachment is conducted before the Senate. Conviction requires a two-thirds vote of the senators present and carries with it removal from office and disqualification from holding any future office. Historically, in functioning as both judge and jury in impeachment trials, all senators observed the testimony and cross-examination of witnesses. But in the modern era, the press of legislative business makes this time-consuming process unworkable. Therefore, in 1986 the Senate made the historic deci- sion to establish a 12-person Impeachment Commit- tee to receive evidence and take testimony prior to the trial on the Senate floor (Heflin, 1987).

An unprecedented series of allegations of misconduct against federal judges since 1981

highlights the interlocking relationships among criminal prosecutions, impeachment, and the new statutory scheme (Exhibit 8.2). The impeach- ment proceedings against U.S. District Judge Alcee Hastings raised the most difficult questions: Unlike Claiborne and Nixon, he was never con- victed of a criminal offense. Hastings, the first African-American federal judge ever appointed in Florida, was indicted for soliciting a $150,000 bribe from two convicted racketeers, but the jury acquitted him. Hastings argued that racial moti- vations lay behind the impeachment proceedings. In 1989, the Senate removed Hastings from his judicial office, but in a strange twist, Hastings was later elected to the U.S. House of Representatives.

These cases are truly exceptional. Prior to the 1980s, only four federal judges had been removed, the most recent in 1936. But these statistics obscure the fact that many misconduct and disability prob- lems of federal judges are resolved informally by the judiciary itself. Whether the federal courts effec- tively police themselves, however, is open to debate.

In 2003, an attorney filed an ethical complaint under the Judicial Conduct and Disability Act

KEY DEVELOPMENTS CONCERNING JUDGES

Judicial Conduct Commission (1960) California creates first judicial conduct commission.

Judicial Conduct and Disability Act (1980) Federal conduct law passed.

Gregory v. Ashcroft (1991) State laws requiring judges to retire at 70 do not violate the federal Age Discrimination in Employment Act.

Chisom v. Roemer (1991); Houston Law-

yers’ Association v. Attorney General of

Texas (1991)

Judicial elections are covered by the Voting Rights Act.

United States v. Lanier (1997) State judges are covered by federal civil rights laws.

Republican Party v. White (2002) In campaigning for a judgeship, a candidate may discuss issues.

Rules for Judicial Conduct and Judicial

Disability Proceedings (2008)

Implemented the recommendations of the Breyer Commission to “provide mandatory and nationally uniform provisions” that govern how judicial misconduct proceedings are conducted in the federal circuits.

New York State Board of Elections v. Lopez

Torres (2008)

It is not unconstitutional for the state of New York to allow political parties to use a judicial convention system to pick the party’s judicial candidates.

Caperton v. Massey Coal (2009) Judges must recuse themselves from cases when large campaign contributions from interested parties create the appearance of bias.

C e

n g

a g

e L

e a

rn in

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 215

FEDERAL JUDGES WHO HAVE FACED DISCIPLINARY ACTION SINCE 1980

Exhibit 8.2

U.S. District Judge Harry Claiborne (District of

Nevada) The jury acquitted him on the charge of accepting a bribe in a criminal case over which he was presiding but convicted him of income-tax evasion. While he was serving a 2-year sentence in federal prison, the Senate found Claiborne guilty on three of four impeachment articles by the required two-thirds vote and removed him from the bench (1986).

Chief Judge Walter Nixon (Southern District of

Mississippi) The jury convicted him of perjury for falsely denying before a federal grand jury that he had intervened in a state narcotics case involving the son of a friend. While he was serving his sentence at Eglin Air Force Base in Florida, the Senate removed Nixon from the federal bench in 1989.

U.S. District Judge Alcee Hastings (Southern District

of Florida) The jury acquitted him of the charge of soliciting a $150,000 bribe from two convicted racketeers. The Elev- enth Circuit and the Judicial Conference concluded that Hast- ings was not guilty but also concluded that he had fabricated his defense. The Senate ousted Hastings from office in 1989, but in a strange twist, Hastings was then elected to Congress.

U.S. District Judge Robert Aguilar (Northern

District of California) A jury convicted him of obstruc- tion of justice for telling a friend about a government wiretap in a racketeering investigation. The Ninth Circuit reversed, but the Supreme Court reinstated the wiretap conviction (United States v. Aguilar, 1995). After another conviction and yet another appellate reversal, Aguilar resigned from the bench, apparently in exchange for criminal charges being dropped.

U.S. District Judge Robert Collins (Eastern District of

Louisiana) A jury convicted him of taking a $100,000 bribe from a drug smuggler. While serving a 7-year prison sentence and facing impeachment proceedings, Collins resigned from the bench before formal Senate action was taken.

U.S. District Judge Brian Duff (Northern District of

Illinois) Noted for his temper and for having the highest rate of reversal in the Chicago courthouse, he stepped down amid reports of a Justice Department complaint filed with the Judicial Counsel for the Seventh Circuit. Judge Duff cited medical problems (Robinson, 1996).

Continued on next page

against U.S. District Judge Manuel Real. The way in which the initial complaint and subsequent complaints against the judge were handled by the Ninth Circuit Court of Appeals caused the case to get the attention of the press, the Judicial Conference, and ultimately, of Congress (Bazelon, 2009). The attention paid to the handling of the allegations against Judge Real, coupled with other instances of ineffective oversight of alleged judi- cial misconduct, led to the formation of a com- mission to investigate how the Judicial Conduct and Disability Act of 1980 had been implemented. Because the commission was led by U.S. Supreme Court Justice Stephen Breyer, it came to be known as the Breyer Commission. After 2 years of study, which included details of the botched handling of the complaints against Judge Real, the Breyer Commission issued a 180-page report (2006). While concluding that circuit judges and judicial

councils were “doing a very good overall job in handling complaints” (p. 206), the Breyer Com- mission found that the federal judiciary misman- aged approximately 35 percent of “high-profile complaints . . . filed by attorneys, court person- nel, or public officials,” such as the ones against Judge Real (Bazelon, 2009, p. 469). Ultimately, Judge Real was found guilty of misconduct and publicly reprimanded for having made “inac- curate and misleading” comments during the investigation of the complaints filed against him. More significantly, though, most of the recommen- dations of the Breyer Commission were adopted by the Judicial Conference of the United States in 2008. These changes included 29 new mandatory rules for improving the “consistency and rigor” of disciplinary processes implemented under the Judicial Conduct and Disability Act of 1980 (Bazelon, 2009, p. 474).

C e

n g

a g

e L

e a

rn in

g 2

0 1

L A W S O N , A N G E L A 6 8 5 3 B U

216 Part II / Legal Actors

JUDICIAL ETHICS

Because of the special role that judges occupy in the adversary system, they are subject to additional ethical constraints beyond those imposed on law- yers. The American Bar Association developed the Model Canons of Judicial Ethics, similar to the codes of legal ethics, but each state has adopted its own canons of judicial ethics. The purpose of these codes of judicial conduct is to preserve the integ- rity of the judicial system and to foster public confi- dence in the system (Gray, 2003).

A study of A State Judicial Discipline Sanctions by the Center for Judicial Ethics of the American Judi- cature Society found that the baseline cases for sanc- tions involve judges who drive while intoxicated or are unduly slow in issuing decisions (Gray, 2003).

Overall, the study concluded that public assumptions about levels of judicial misconduct are not borne out by the evidence. But state supreme courts can do more to tackle this cynicism by providing thorough, well-reasoned opinions in judicial misconduct cases and making them readily accessible to the public. Interestingly, a failure of the judge to cooperate with the state’s judicial conduct commission was a contrib- uting factor to a judge’s removal (Gray, 2003).

Accusations of improper conduct by judges often reflect a lack of understanding of the role of judges in the adversary system. Judges face public criticism for reaching decisions that the public finds unpopu- lar. A major obstacle facing judges who are the focus of negative public comments is the judicial conduct standard prohibiting judges from commenting on cases. But some judges find ways to offer appropri- ate, but nonprejudicial, defenses. A case in point is

U.S. District Judge Edward Nottingham (Colorado) Resigned from the bench amid allegations that he viewed an adult website on his government computer, spent $3,000 in a Denver strip club, and solicited prostitutes using his court-issued cell phone.

U.S. District Judge Samuel Kent (Southern District

of Texas) Kent pled guilty to obstruction of justice for lying to judges who investigated sexual misconduct complaints. Sentenced to 33 months in federal prison in May 2009, Kent attempted to retire from the bench, thereby allowing him to draw his salary. The House of Representatives impeached him in June 2009. He resigned from the bench in disgrace, effectively ending his impeachment trial in the Senate.

U.S. District Judge Manuel Real (Central District of

California) Amid numerous allegations of bizarre behav- ior and also taking control of a bankruptcy cases involving a friend, Real faced impeachment hearings in the House of Representatives, but the charges were later dropped. Although publicly censured, the judge who is in his late 80s continues on senior status (a form of semi-retirement in which a judge may opt to hear a reduced caseload).

U.S. Circuit Judge Alex Kozinski (Ninth U.S. Cir-

cuit Court of Appeals) Judge Kozinski was formally

admonished in June 2009 for having sexually explicit photos and videos on his publicly accessible website. The files were stored on a personal computer at his home that was connected to the Internet using web server software. He claimed that he did not intend for the materials to be publi- cally available. The Judicial Council said that Kozinski had exercised “poor judgment” by failing to take safeguards to prevent the material from becoming publicly accessible, and that his carelessness was “judicially imprudent.” Kozinski issued a formal apology for causing “embarrassment to the federal judiciary.”

U.S. District Judge Thomas Porteous (Eastern

District of Louisiana) Accused of taking cash from law- yers with cases in his court when he was a state judge and repeatedly lying under oath, Porteous was impeached by the House and overwhelmingly convicted by the Senate in 2010.

U.S. District Judge Richard Cebull (District of

Montana) At the time this book went to press, Judge Cebull was facing possible disciplinary action by the 9th U.S. Circuit Court of Appeals for a racist and sexist e-mail about President Obama. Cebull admitted forwarding the message to several friends from his judicial e-mail account from the governmental computer in his chambers.

Continued from previous page

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 217

Judge Arthur Hunter of New Orleans. The district attorney harshly criticized him for threatening to release defendants because the DA’s office could not bring them to trial in a timely manner follow- ing Hurricane Katrina. Stressing his credentials as a former police officer, the judge wrote:

Many people have a gross misconception of the

role of judges in the criminal justice system. . . .

Judges are like referees in a basketball game. They

do not favor either side, but make sure the police,

district attorney, and defense attorneys follow all the

rules. Judges are not teammates with the district at-

torney, cheerleaders for the police, or coaches for the

defense attorney. (Hunter, 2006)

Prohibition on conduct that brings the judicial office into disrepute is another requirement of canons of judicial ethics. Typically, this applies to situations in which the judge is having an extramarital affair or the like. But occasionally it involves conduct that is not personal but rather judicial. The best-known example is that of Roy Moore, who was elected chief justice of the Alabama Supreme Court. Consistent with his campaign promises, he installed a large granite monument of the Ten Commandments in the courthouse. When a federal court ordered its removal because it violated the First Amendment of the Constitution, the judge refused to comply. His refusal to obey a lawful court order was deemed to bring the judicial office into disrepute, and so he was removed from the bench (Clark, 2005).

The tension between electing judges and appearances of impropriety is emerging as a major issue in judicial ethics. In Republican Party v. White (2002), the Supreme Court allowed can- didates for judicial office to discuss issues that might come before the court and to criticize past court decisions. The result has been a new dynamic in judicial elections, with some races featuring negative political ads and contentious campaigns (Fortune & White, 2008). Some are concerned that elections erode public perceptions of an impartial judiciary. In the words of Justice at Stake “Can two sides in a lawsuit receive equal justice when one side has spent $3 million to elect the judge deciding the case?” This issue was at the heart of Caperton v. Massey Coal (Justice at

Stake, 2009b) in which the Supreme Court held that judges must recuse themselves from cases when large campaign contributions from inter- ested parties create the appearance of bias.

Judges play a key role in enforcing legal eth- ics. During the course of a lawsuit, a judge may be called on to enforce rules of professional conduct. At times, hearings or trials can become heated. The judge may find that a lawyer went too far in his or her argument or was unduly nasty to opposing counsel. In such cases, the judge may find the law- yer in contempt of court and impose a small fine or a brief jail term. On the civil side, a lawyer may accuse opposing counsel of an ethical violation such as failing to respond in a timely fashion or unneces- sarily causing additional work for the lawyer. If the judge agrees, the judge may impose attorney’s fees, that is, require the lawyer who caused the miscon- duct to financially reimburse opposing counsel.

CONCLUSION

In deciding Caperton v. Massey Coal Company (2009) the U.S. Supreme Court stressed that the decision addressed an “extraordinary situation”: the Court stressed that the owner of Massey Coal spent over $3 million to elect his preferred candidate to the West Virginia Supreme Court, an amount three times more than any of the other candidate’s sup- porters. By emphasizing these facts, the justices of the nation’s highest court were apparently trying to separate the case from the fictional basis of the novel The Appeal. But where fact ends and fiction begins is always hard to tell. John Grisham is a fiction writer who excels in emphasizing extraordinary situa- tions that, while fictional, are still based on fact. This blending of fact and fiction, life imitating art, provides another chapter in the ongoing national debate over judicial selection. Nor did interest end with the Court decision. A year after Caperton a coal mine owned by Massey Energy exploded, leaving 29 dead and reopening the issue of whether the company had systematically cut corners when it came to mine safety (Tavernise, 2012).

In the modern era, displeasure with judges has led to renewed interest in how judges are selected. But no matter how we select our judges and who they are, the workaday world of the trial judge

L A W S O N , A N G E L A 6 8 5 3 B U

218 Part II / Legal Actors

1. Discuss the role of the judge within the courtroom work group.

Judges are the most prestigious members of the courtroom work group, but they are expected to be reasonably responsive to lawyers and are also under pressure to move the docket.

2. Name the three major ways that judges are selected in the United States.

Judges are appointed by executives (like governors and the president), elected by the voters, or appointed through a merit selection process.

3. Analyze the consequences of different methods of judicial selection.

The various selection systems produce judges with very similar backgrounds, including local ties and past political involvement. No evidence exists that one selection system consistently produces “better” or “worse” judges than another, although research does reveal some differences in judicial approaches to decision making.

1LO1

2LO2

3LO3

4. Recognize major changes in the composition of the bench over the past several decades.

Over the past several decades, the composition of the bench has become more diverse, with a significant number of women and some racial and ethnic minorities being elected and appointed to the nation’s courts.

5. Describe the activities of state judicial conduct commissions.

If the state judicial conduct commissions find merit to a complaint about a judge, they often work informally to correct the problem. But if the problem is a serious one, the commission may recommend to the state supreme court that the judge be removed from office.

6. Explain the difference between the impeachment and the removal of a federal judge.

If the House of Representatives votes articles of impeachment charging a federal judge with serious misconduct, the Senate conducts a trial and may remove the judge from the bench.

4LO4

5LO5

6LO6

1. Which method of judicial selection (election, ap- pointment, or merit) do you think is best? What does your choice reveal about your personal attitudes? Stated another way, do you think the legal profession should have more say in judicial selection (merit) or less influence (elections)?

Critical Thinking Questions

2. For your state, examine judicial selection in terms of both law on the books (formal method of judi- cial selection) and law in action (actual practices).

3. At what point are efforts to remove “unfit” judges really efforts to remove judges because of deci- sions they have made?

Chapter Review

bears little resemblance to the high expectations we have about the role of the judge. The trial judge is expected to dispose of a large caseload but is often frustrated by the attorneys’ lack of preparation, missing defendants, misplaced files, little time to reflect, and probably most important, insufficient control over many vital aspects of the case. For

these and other reasons, judges depend on other members of the courtroom work group. Some depend heavily on the prosecutors, defense attor- neys, and probation officers, feeling content to let them make the difficult decisions. Others are much more active participants and are truly leaders of the courtroom work group.

L A W S O N , A N G E L A 6 8 5 3 B U

JudgesChapter 8 219

American Bar Association (ABA) 204

chambers 199

gubernatorial appointment 205

impeachment 214

judicial conduct commission 212

judicial election 206

judicial independence 209

Missouri Bar Plan 206

removal 214

Key Terms

Go to the America’s Courts and the Criminal Justice System companion website at

http://www.cengage.com/criminaljustice/neubauer,

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Web Resources

Baum, Lawrence. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton, NJ: Princeton University Press, 2007.

Bonneau, Chris. “Vacancies on the Bench: Open-Seat Elections for State Supreme Courts.” Justice System Journal 27: 143–160, 2006.

Carns, Teresa. 2009. “The Alaska Merit Selection System at Work, 1984-2007.” Judicature 93: 102–108.

Epstein, Lee, and Jeffrey Segal. 2005. Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press.

Geyh, Charles. 2006. When Courts and Congress Collide: The Struggle for Control of America’s Judicial System. Ann Arbor: University of Michigan Press.

Gray, Cynthia. Ethical Standards for Judges. Des Moines, IA: American Judicature Society, 2009.

Hettinger, Virginia, Stefanie A. Lindquist, and Wendy L. Martinek. 2006. Judging on a Collegial Court:

Influences on Appellate Decision Making. Charlottesville: University of Virginia Press.

Peabody, Bruce (Ed.). The Politics of Judicial Independence: Courts, Politics, and the Public. Baltimore: Johns Hopkins University Press, 2010.

Peters, C. Scott. “Canons, Cost, and Competition in State Supreme Court Elections.” Judicature 91: 27–35, 2007.

Salokar, Rebecca, D. Jason Berggren, and Kathryn DePalo. “The New Politics of Judicial Selection in Florida: Merit Selection Redefined.” Justice System Journal 27: 123–142, 2006.

Streb, Matthew (Ed.) Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections. New York: NYU Press, 2007.

Swanson, Rick. “Judicial Roles in State High Courts.” Judicature 94: 168–177, 2011.

For Further Reading

4. American society has high expectations for judges, yet the actions of judges are constrained by other members of the courtroom work group. To what extent is criticism of judges, whether lo- cal or national, really criticism of the actions and inactions of prosecutors and defense attorneys?

5. Does underrepresentation of women on the bench hurt justice? Would citizens’ views of the fairness of courts improve if more nontraditional persons became judges?

L A W S O N , A N G E L A 6 8 5 3 B U

Ch 8: Judges��

Learning Objectives
The Position of Judge��
Judges within the Courtroom Work Group��
Varying Roads to a Judgeship��
Consequences of Judicial Selection��
Judging the Judges��
Judicial Ethics��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��