Chapter 6 Judges Judicial Selection – Which method? Shaped by 3 questions.

1. Chapter 6 Judges • Judicial Selection – Which method? Shaped by 3 questions. • What’s a Good Judge? – stellar legal credentials or modest credentials better suited for the actual functions of most judgeships (e.g., administration). • Who Should Select Judges? • Actors: Lawyers, elected officials, or voters? • Public generally distrusts all of these. Selection in the U.S. usually features participation by all three plus interest groups. • Judicial Independence or Political Accountability? • Public holds contradictory opinions here. • Therefore, methods often feature compromise. For example, practically all judges, regardless of method, hold longer terms (promotes independence). D. 3 methods in general emerge from these questions:

2. Appointment (by executive or legislative) • Elections (partisan or nonpartisan) • Merit Selection • Appointment of Federal Judges Constitution says simply that Fed judges will be nominated by Pres, confirmed by Senate, and serve for life. President’s personally involved in SC appointments, but less in lower federal court appointments. • Senatorial Courtesy • Started with Washington (1789). • Senators of Pres party are consulted before nomination of a district court judge from Senators’ states. • If Senator is not from Pres party, consultation is literally a courtesy (polite). • Senatorial courtesy far less important in C of A nominations (crosses state lines). • Interest Group Involvement 1. Increasingly involved/influential.

3. None more than the ABA, which is directly involved. • Senate Judiciary Committee requests the opinion of the ABA Standing Committee on Federal Judiciary (14 members, staggered 3-year terms). Rank nominees “well-qualified; qualified; unqualified” 4. GOP President’s traditionally enjoy better cooperation with ABA than Dems (ABA usually politically conservative). Switched lately however; Bush and Clinton). • If declared qualified by ABA and favorable hearing in SJ Committee, Presidential nominees are practically always confirmed by floor. Instead of rejecting, opposing parties usually try delay tactics. • Clinton Judiciary (peculiar) • Determined not to use ideology as a screen • First to allow nominations to come from Justice Department (Reno) instead of White House. • Appointed record # of women and minorities • Bush Judiciary 1. Pledge to appoint strict constructionists (Reagan too)

4. Verge of doing it with GOP control in Senate, until Sen. Jim Jeffords left GOP to give Dems a voting majority in Senate. • GOP gained Senate back after elections in 2002 (51-49). Bush re-nominated his group of conservatives. Dems found a loophole tactic (filibuster on procedural votes for the most conservative nominees). • Still, Bush able to confirm 100 of 131 judges. • Backgrounds of Fed Judges • Whether by Dems or Reps, similar: former activists in Pres party, held prior gov’t positions (judges/prosecutors), white male Protestants from elite law schools. • Difficult to use D/R Pres to predict what the judiciary would look like. Clinton appeared to be more “elitist” (appointed richer, Ivy leaguers) than Bush (see Table 6-1)

5. Judicial Elections – majority of state judges are elected. Product of Jacksonian era (early 1800s; transfer rule to common man, democratize political system, etc.). View abhors special qualifications for public office; let voters decide. • Methods (Table 6-2) • Partisan Elections (9 states) • Nonpartisan Elections (12; MS) • Appointment (5) • Merit Selection for all (15) • Combined (some Merit some elected; 9) • Judicial Campaigns • Usually low-key, little controversy, not nearly as much partisan language, candidates often do not take rigid policy positions. • Turnout is low (13% know much about candidates). • Favors incumbents: marked as “Judge” on ballot. Sitting judges seldom opposed; when challenged, just a few get voted out. • Campaigning changing: nastier, noisier, costlier

6. Merit Selection (MO plan) • Judicial reformers argued that simply electing judges had 3 adverse effects: • Discouraged qualified lawyers from running (they are not politicians) • Suggest impropriety (answer to voters/parties) • Voters least likely to be informed on judicial candidates • Merit Plan (or Missouri Bar Plan, 1940) is the proposed solution/compromise (hybrid) • Judicial nominating commission composed of lawyers and citizens create list of suggested nominees • Governor appoints one to fill vacancy • After a short period (1 yr typically), new judge faces an uncontested retention election (keep Judge X or not?). • If retained by voters, awarded full term. Subsequent terms awarded via another retention election. 3. 1964-1998, 4588 retention elections, 52 ousted (99% retention). 28 from IL (requires 60% vote to retain).

7. Assessment • Has not eliminated politics from selection process (interested groups, like plaintiff and defense lawyers, work to have their reps on commission). • Basically has reduced importance of parties and enhanced influence of legal profession. • Which System is Best? • Selection systems do not seem to matter in terms of judge quality. • Yet, election systems have an impact on minority representation. • Statewide elections tend to reduce it. • The VRA 1965 (revised 1982) encouraged the creation of majority-minority districts for elections, including judicial ones. • Removing Judges Most judges can be removed only through Impeachment (federal) and some states allow for recall elections. Only 6 federal judges have been removed *Hastings-FL was ousted from bribery,

8. Then elected to the House that charged him. Nixon from South MS district court, convicted of lying about intervening on behalf of a son of a friend. Drew his judicial salary while serving time, until removed by Senate.