Judicial Process In America 8 th Edition

1. Judicial Process In America8th Edition Robert A. Carp, Ronald Stidham, & Kenneth L. Manning 2011

2. State Judges • Qualifications and Backgrounds of State Judges—Most states do not require justices of the peace or magistrates to have law degrees (trial and appellate judges are required to have law degrees). States do require a certain amount of legal experience , usually in the form of years served as a licensed attorney (101). • States also generally impose U.S. citizenship and state residency requirements, and a number of states impose minimum age requirements and/or mandatory retirement ages (101).

3. State Judges • The informal qualifications for being a state jurist are reflected in the socioeconomic profile. The position of a jurist was once strictly reserved for males; however, female jurists have recently acquired staggering numbers as approximately one third of lawyers in the United States are female (101). • The gender balance will continue to shift, as almost half of all law students presently are women (102).

4. State Judges • Though the number of female jurists continues to increase, the number of females that are appointed to the bench remain underrepresented in the judiciary (102). • Minority representation remains distinct, as only 6 percent are African American, about 2.8 percent are Latino, and 1 percent are Asian American, and only .1 percent are Native American. Although white judges predominate approximately nine out of ten, the number of minority jurists has risen substantially since the early 1980s and mid-1990s (102).

5. State Judges • As for political party affiliation, the balance between Democrats and Republican judges fluctuates according to the “political tide” (102). • Nationwide , the data suggest a reasonable level of partisan balance: in 2000, a slight majority (51.8 percent) of the state high court justices sitting were Democrats, compared with 64.3 percent in 1994; as for the remainder, 46.2 percent were affiliated with the Republican party, and only 2 percent were independents or had no political party affiliation (103).

6. State Judges • Serving as a prosecutor was the career path chosen by about one third of the justices serving on the state courts of last resort in 2000 (103). • Nearly 72 percent of the justices who acquired a position on the state’s highest court had previous judicial experience—conversely, this means that 28 percent of the justices began their judicial career on their state’s highest court (103). • As for holding elected office before ascending to the bench, only 15 percent of the judges on the state courts of last resort were former elected officials (103).

7. The Selection Process for State Judges • At the state level, various methods are used to select jurists. Basically, there are five routes to a judgeship in any one of the fifty states: • Partisan election • Nonpartisan election • Merit selection(a method of selecting judges that requires the governor to make the appointment from a short list of names submitted by a special commission established for that purpose; after serving for a brief period of time, the judge must run in a retention election. Voters thus determine whether the judge should be retained for a full term) • Gubernatorial election • Appointment by the legislature (103)

8. Election of Judges • The election of judges, on either a partisan or nonpartisan ballot, is a common selection methodology among the states. This selection methodology became popular during the tenure of President Andrew Jackson—during an era when Americans sought to democratize the political process (103). • Before the 1980s, judicial elections “were generally uncompetitive, and the major causes of turnover on the bench were retirements and resignations” (103).

9. Election of Judges • Uncontested races typically involved modest spending and low levels of visibility. Due to the scarce amount of information regarding judicial campaigns, voters relied primarily on such cues as party affiliation and name familiarity (103). • Such campaigning began to change in the late 1970s, and “the 1980s brought numerous examples of extremely competitive and remarkably expensive judicial elections” (104).

10. Election of Judges • The first indications of a new style of judicial elections appeared in California, where deputy district attorneys in Los Angeles advertised in a local newspaper to recruit candidates to run against current trail court judges. This resulted in an unprecedented number of contested races and defeated incumbents. Subsequent judicial elections in California have been characterized by “preemptive fundraising and hiring political consultants early in the election season” (104).

11. Election of Judges • Another important change in judicial elections involves the source of campaign funds—a subject that raises concerns about the susceptibility of judges to accusations of favoritism (105). • In 2009, the U.S. Supreme Court ruled that “excessive contributions to judges create an unconstitutional threat to a fair trial because they pose a risk of ‘actual bias’ in cases involving their political benefactors”. Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), (106).

12. Elections of Judges • The question of campaign contributions also involves lawyers making contributions to judicial candidates in the hope of receiving favorable treatment in the courts. Lawyers may also be asked to provide contributions to a judicial campaign (106). • Interest groups also pose concerns, due to interest groups supporting partisanship, as interest groups “view judicial elections as a way to influence court decisions by altering the composition of the bench” (106).

13. Merit Selection • Merit selection has been a preferred method of selecting judges, since the early 1900s. The first state to fully adopt such a method was Missouri, in 1940 (107). • Merit selection—a method of selecting judges that requires the governor to make the appointment from a short list of names submitted by a special commission established for that purpose; after serving for a brief period of time, the judge must run in a retention election. Voters thus determine whether the judge should be retained for a full term.

14. Merit Selection • The merit selection scheme has plenty of room for politics, ,as special interest groups have discovered that judicial retention elections “are vehicles by which offending judges can be unseated and state judicial policy making can be influenced” (108).

15. Gubernatorial Appointment and Legislative Appointment • When judges are appointed by the governor, politics almost invariably come into play. Governors tend to select individuals who have been active in state politics and whose activity has benefited either the governor personally or the governor’s political party or allies (109). • A governor often bargains with local political bosses or state legislators whose support is needed. A governor may also use a judgeship to reward a legislator or local politico who has given faithful political support in the past (109).

16. Judicial Selection Methods and the Recruitment of Women and Minorities • A study in 1999 observed the representation of women and minorities on the state appellate courts; the study found that a slightly higher percentage of women and minorities attained their positions by judicial election (26.83 percent), as compared with being appointed in a merit selection system (24.86 percent); however, an even higher percentage of women and minorities (28.18 percent) were appointed by the state’s governor (109).

17. Judicial Selection Methods and the Recruitment of Women and Minorities • Similarly, a 2005 study found that almost 70 percent of minority judges in general jurisdiction courts obtained their position through partisan or nonpartisan elections. The finding that women and minorities fare better in elections than in a merit plan indicates the importance of the U.S. Supreme Court’s 1991 decision that the Voting Rights Act of 1965 fully applies to the election of state judges (109).

18. The Retirement and Removal of State Judges • The burden of judges being too old or unfit to serve is a larger concern on the federal level than the state level, as a number of states have mandatory retirement provisions (110). • The U.S. Supreme Court, in 1991, “boosted such mandatory retirement plans by ruling that such plans do not violate federal law or the Equal Protection Clause of the Fourteenth Amendment” (110).

19. The Retirement and Removal of State Judges • There are situations in which judges have engaged in controversial activities (e.g., corruption or unethical behavior). As a result, there are procedures that assist in removing such controversial judges: • Impeachment (the only way in which a federal judge may be removed from office. The House of Representatives brings the charge(s), and the Senate, following trial, convicts by a two-thirds vote of the membership) • Recall elections • Concurrent resolutions of the legislature (110)

20. The Retirement and Removal of State Judges • A number of states have established special commissions, often composed of the judges themselves, to police their own members (110). • These high-profile cases are somewhat exceptional, as reformers have given these types of commissions only fair-to-poor marks because the persons most familiar with the problem—the judges—are often loath to expose a colleague to public censure and discipline (111).