HGov: Selecting Judges


13 Choosing Justices

Each state has its own method of choosing judges to preside over state courts. There are three basic routes to a judgeship: election, appointment, or merit selection.

The oldest method of choosing state judges is through the election process. Supporters of this method argue that judicial elections provide a public forum for debating judicial issues. They also argue that elections allow voters to remove judges who have not upheld the public trust. However, this method of choosing judges is not without its pitfalls. First, to fund their campaigns, judicial candidates must often seek contributions from lawyers and business that may eventually appear before them in court. This may interfere with their ability to be impartial. Second, voter turnout for judicial elections is notoriously low. Most voters simply do not know enough about judgeship candidates to cast a meaningful vote.

In a handful of states, judges are appointed by the governor or state legislature. This method relieves poorly informed voters of the responsibility of choosing judges. Nonetheless, it also has drawbacks. Governors often use their appointment power to award judgeships to those who have supported them politically. Similarly, state legislatures tend to appoint former lawmakers to be judges. Such appointees may or may not be highly qualified to serve as judges.

Finally, many judges are selected through a process that combines appointments and elections. Under this system, a committee nominates candidates for judgeships based on their merits, or qualifications. The governor then appoints judges from this list. After a fixed period, usually a year, voters are asked to confirm or reject the appointment in a retention election. If a majority of voters answer yes, the judge remains in office for a longer term. If a majority says no, which rarely happens, the judge is removed from office. Supporters of this process argue that it takes the politics out of judicial appointments by focusing on candidates’ qualifications rather than on their political connections or popularity with voters. At the same time, merit selection allows voters to review a judge’s performance on the bench from time to time. Opponents argue that this method gives the public too little control over judges.

president-appoinment-sotomayorDespite their different levels and functions, all federal courts have one thing in common, judges. These judges oversee court proceedings, decide questions of law, and, where no jury is present, determine the outcome of the cases before them.

The Constitution gives the president the power to appoint federal judges, but it says nothing about the qualifications of judges. Generally, presidents look for candidates who have distinguished themselves as attorneys in the state where an opening exists. They also tend to look for candidates who share their political ideology.

In theory, the confirmation process looks simple. The president submits a nomination to the Senate. The nomination goes to the Senate Judiciary Committee. If approved by the committee, the nomination is submitted to the full Senate for a confirmation vote.

However, the reality is more complex because of an unwritten rule known as senatorial courtesy. This rule allows a senator to block a nomination to a federal court in his or her home state. Nominations are blocked through a process known as the blue-slip policy. When the Senate Judiciary Committee receives a nomination, it notifies the senators from the nominee’s state by sending them an approval form on a blue sheet of paper. If a senator fails to return the blue slip, this indicates his or her opposition to the appointment. As a courtesy to the senator, the Judiciary Committee then kills the nomination by refusing to act on it.

Nominees who make it through the confirmation process remain in office, as Article III states, during good behavior. In practical terms, this means they are judges for life or until they choose to retire. The only federal judges not appointed to life terms of service, are those serving in most of the special courts. With the exception of the Court of International Trade, the creation of these special courts was not expressly authorized under Article III. Instead, Congress created them using its legislative authority. As a result, Congress has the power to fix terms of service for special court judges. The only way to remove a federal judge with lifetime tenure from office is by impeachment. Over the past two centuries, the House of Representatives has impeached 13 federal judges. Of that number, only 7 were convicted of wrongdoing in the Senate and removed from office.

Article III also states that the salaries of judges with lifetime tenure shall not be diminished during their continuance in office. This means that judges cannot be penalized for making unpopular decisions by cutting their pay. The purpose of these protections was to ensure the independence of the judges against the effects of occasional ill humors in society.


Homework:
1) Read Chapter 14 Federal Judicial System
2) Read Chapter 15 Economic and Environmental Policy

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