👩🏼‍⚖️Courts and Society Unit 2 – Judicial Selection and Appointment

Key Concepts and Terminology

• Judicial selection involves the process of choosing judges to serve on various levels of courts
• Appointment refers to the act of assigning a judge to a specific court or judicial position
• Merit selection utilizes a nominating commission to recommend qualified candidates based on their experience and qualifications
• Partisan elections involve judges running for office with a political party affiliation
• Nonpartisan elections have judges run without displaying their party affiliation on the ballot
• Retention elections allow voters to decide whether a sitting judge should remain in office for another term
• Senatorial courtesy gives deference to the opinions of senators from the state where a federal judicial nominee will serve
• The Missouri Plan combines elements of merit selection and retention elections for choosing state judges

Historical Background

• The U.S. Constitution establishes the federal judiciary and grants Congress the power to create lower federal courts
• In the early years of the nation, most states appointed judges through legislative or executive action
• Jacksonian democracy in the 1820s and 1830s led to a shift towards electing judges as a means of increasing accountability
• The Progressive Era saw a move towards merit selection as a way to reduce political influence on the judiciary
• The Missouri Plan, developed in 1940, became a model for merit selection in many states
  • Combines initial appointment by the governor from a list of candidates vetted by a nominating commission
  • Followed by periodic retention elections where voters choose whether to keep the judge in office
• Recent decades have seen a trend towards more contentious and politicized judicial elections, especially for state supreme courts

Types of Judicial Selection Methods

• Appointment by the executive branch (president for federal judges, governors for state judges)
• Appointment by the legislature
• Partisan elections where candidates run with a party affiliation
• Nonpartisan elections where party affiliations are not listed on the ballot
• Merit selection using a nominating commission to recommend candidates based on qualifications
• Retention elections where voters choose whether to keep a sitting judge in office
• Combination systems that use elements of appointment and elections (Missouri Plan)

Federal vs. State Appointment Processes

• Federal judges, including Supreme Court justices, are nominated by the president and confirmed by the Senate
  • Lifetime appointments with no fixed term limits
  • Can only be removed through impeachment by the House and conviction by the Senate
• State judicial selection varies widely, with some states using appointment, others using elections, and some using a combination
  • Most states have fixed terms for judges, ranging from a few years to over a decade
  • Some states use retention elections to determine if a judge stays in office after their initial term
• Senatorial courtesy plays a role in federal district court appointments, with senators from the state where the judge will serve having influence
• The Senate Judiciary Committee holds hearings on federal judicial nominees before a full Senate vote on confirmation

Criteria for Judicial Candidates

• Professional qualifications such as legal experience, education, and bar association ratings
• Judicial temperament and ability to be impartial and fair-minded
• Personal integrity and ethical standards
• Diversity in terms of race, gender, and background to ensure the judiciary reflects the population
• Ability to manage a heavy caseload and render timely decisions
• Respect for legal precedent and the rule of law
• Commitment to equal justice and protecting individual rights

Controversies and Debates

• Concerns about the politicization of judicial selection, especially in partisan election states
• The role of money in judicial campaigns and potential conflicts of interest
• Balancing the need for judicial accountability with the importance of judicial independence
• Ensuring diversity on the bench while also prioritizing qualifications and merit
• The impact of controversial judicial decisions on public perception and trust in the judiciary
• Debates over the appropriate role of the judiciary in interpreting laws and the Constitution
  • Originalism vs. living constitutionalism
  • Judicial activism vs. judicial restraint
• Criticisms of life tenure for federal judges and proposals for term limits or mandatory retirement ages

Impact on Judicial Independence

• Appointment systems can insulate judges from political pressure and allow them to make decisions based on the law
• Election systems can make judges more accountable to the public but also subject them to political influence and campaign pressures
• Merit selection aims to balance independence and accountability by having experts vet candidates while still allowing for retention elections
• Concerns that the need to raise money for election campaigns could compromise judicial impartiality
• The potential for judges to face backlash or lose their jobs over unpopular decisions
• The importance of an independent judiciary as a check on the other branches of government and protector of individual rights

Recent Trends and Future Outlook

• Increasing politicization of judicial elections, particularly for state supreme courts
• The rise of dark money and interest group spending in judicial races
• Growing calls for reform, such as adopting merit selection or public financing of judicial campaigns
• Continued debates over the proper role of the judiciary and methods of selection
• Efforts to increase diversity on the bench through appointment processes and candidate recruitment
• The potential impact of changing public attitudes and polarization on the perception of the judiciary
• The ongoing need to balance judicial independence, accountability, and public trust in the legal system