Judges Nomination

Lawyers become judges in the United States through four methods: 1) by nomination of the chief executive with confirmation by a legislative body, 2) by appointment of the chief executive from a short list of persons certified by an independent commission to be qualified for the position, 3) by popular election, and 4) by election in the legislature. Terms of office vary considerably from one system to another. They range from terms of years – some as short as four or six and a few as long as twelve to fifteen – to "good behavior," usually spoken of as a term "for life."

The federal system is the best known example of executive nomination with legislative confirmation. All federal judgeships are filled in this manner. The filling of district judgeships usually involves a significant amount of participation by members of the Senate, the confirming body. Senators view district judgeships in their states as being of special importance to them and their supporters. The Attorney General of the United States and the Department of Justice, which he heads, are key executive branch participants in the selection process, along with the White House staff. All of these participants must discuss and often negotiate with each other in order to arrive at a mutually agreeable choice – a person acceptable, to them both professionally and politically. While the President ultimately selects the nominee, he is constrained as a practical mailer by all these forces.

In making nominations for the U.S. courts of appeals the President and the Department of Justice have a somewhat freer hand, with less involvement by the Senators. Judges on each of these courts are drawn from several states, so no Senator has as strong an interest in the vacancy as he usually does in a district court position in his own state. In selecting Supreme Court nominees, the President has even more leeway, but he still must take into account sentiment in the Senate, as that body has in effect a veto power over the nomination.

Only a handful of states employ a judicial selection method similar to the federal. In most states the commission nominating method is used for at least some courts. In some states all judges are appointed through this process. In others it is used only for appellate judges. In still others it is used only for trial judges in certain cities or counties.

This so-called "merit plan" involves the use of an independent nominating commission, typically consisting of nine to fifteen members, a mixture of lawyers, judges, and non lawyers. Efforts are usually made to constitute the body in a nonpartisan way to diminish as much as possible the aura of partisan politics in the selection process. When a judicial vacancy occurs, the commission invites suggestions from the bar and the public as to suitable nominees. It also receives applications from interested lawyers. The commission will then review all available information about each prospect and will often interview those who appear most promising. In the end it will submit to the Governor a list of those it considers best qualified, supposedly without regard to political affiliation. In some states the list consists of three names; in other states as many as five names may be submitted. From this list the Governor makes the appointment.

Despite the spread of commission nominating system in the last half of the twentieth century and the continual campaign in its support, many states still choose judges at popular elections. This method of judicial selection, unknown in England and in the first decades of the United States, was introduced during the presidency of Andrew Jackson as an aspect of "Jacksonian democracy." In some states candidates for judgeships run under party labels like candidates for all other offices. In others they are on the ballot without party identification. Running for a judgeship under either arrangement raises special problems. A candidate for judicial office cannot have a "platform" or an agenda for action. The nature of the office requires that its holder be objective and above all that he not take a position in advance on any issue; judges must decide cases on the basis of the facts and the law as they appear when the case is before them for decision. That being so, there is little of significance that a judicial candidate can appropriately say. Another major problem is campaign financing. Campaigns for judgeships have become increasingly expensive, a condition exacerbated by the high cost of television advertising, considered essential to a successful race. The candidate must raise these funds from others, chiefly lawyers who will be appearing before him in the future. The damage to judicial objectivity and to the appearance of objectivity is obvious.

At the time of the formation of the Union, over half of the states chose their judges by election in the legislature. Now only two states employ this method, Virginia and South Carolina. While legislative election has disadvantages in that the decision often turns on partisan political factors, it has an advantage over popular election in that it does not involve extensive and costly campaigning by the prospective judge.

It is interesting that in many states where the law provides for the election of judges, the majority of judges are in fact appointed by the Governor. This is because the Governor is authorized to fill vacancies that occur between elections or legislative sessions, and many vacancies come about at those times through death, resignation or retirement.

Text E. Translate the text in writing. Get ready to discuss it.