Judicial Selection Research Paper

1. Judicial Selection And Judicial Independence

Judicial selection was very much on the minds of the American colonists in the eighteenth century when they included among the list of ‘repeated injuries and usurpations’ in the Declaration of Independence that the king ‘has made judges dependent upon his will alone, for the tenure of their offices, and the amount and payment of their salaries.’ The framers of the American Constitution, mindful of this and also influenced by Montesquieu’s work, incorporated the principle of the separation of powers among the branches of government, with the judiciary envisioned as a separate and distinct governmental entity. Unlike the English form of government, as they understood it, the judiciary was not to be linked to the legislative and executive branches. Neither the executive nor the legislative branch was to be solely responsible for the selection of judges; they were to share that power. The President was charged with nominating and the US Senate given the task of advising and consenting by either confirming or not confirming nominees by majority vote. To ensure the independence of the federal judiciary, judges were given lifetime tenure removable only by the cumbersome process of impeachment by the House of Representatives and conviction by two-thirds vote of the Senate after a trial. Thus, for the American framers, judicial selection was inextricably associated with judicial independence.

Can there be justice from a judiciary whose members owe their jobs to an executive who can remove or discipline them at will? Can a judge whose selection and retention is by election be as neutral and objective as a judge with life tenure? Are civil service methods of selection superior to more political selection methods in producing fair and objective justice?

There are a variety of judicial selection methods used to staff courts in countries around the world. Legislatures, the chief executive or heads of executive branch departments or agencies, and even members of the judiciary can be found participating in selection processes. Are there consequences of differing types of selection methods for the quality of justice?

2. Goals Of A Selection System

To begin to answer the questions raised above, it is necessary first to formulate what ought to be the goals of a selection system. It is reasonable to argue that at bottom, a selection system ought to produce ‘good’ judges, that is, professionally outstanding individuals who have demonstrated that they have judicial temperament, including a reputation of being even-tempered and fair-minded, and, if already on the bench, a track record as competent and impartial. A ‘good’ judge will exercise his or her discretion so as not to be obviously biased at either end of the ideological spectrum. Furthermore, a good selection system will not discriminate against qualified women and ethnic racial minorities, something that it can be argued is essential for the legitimacy of a judiciary.

3. Methods For Selecting Judges In The States Of The USA

Five methods for selecting judges are used by the states and one method used by the federal government. Close to half the states elect some or all of their judges at general elections where individuals run for judicial office as members of a political party (partisan elections) or are required by law to run without a party affiliation (nonpartisan elections). About one-third of the states use the merit plan whereby a nominating commission often of lawyers and judges submits to the governor a list of names to fill a particular judicial position and the governor by law must make the selection from that list. Eight states and the federal government select their judges by appointment by the chief executive with the approval of another body, typically the executive council or senate. Three states use the legislature to select those for judicial office with the governor having no constitutionally mandated role in the process.

In practice, scholars have found that all these methods involve politics of one sort or another. There is the most obvious form of party organizational politics that at the local level is evident with the electoral methods of selecting judges. Even where the nonpartisan ballot is used, in some states local party leaders endorse a candidate or otherwise make known their support for the individual running for judicial office. At the state level, party organizational politics are often prominent in the legislative and gubernatorial appointment systems. Governors not only are central to the gubernatorial selection method but they can influence the merit selection process by naming friends and associates to the nominating commissions. Interest groups not only can influence the outcome of judicial elections, they can exert influence on the governor and legislature. And still another form of politics is bar association politics which cuts across all selection methods—for example, the bar may rate or even endorse candidates for judgeships. And, of course, the organized bar has great influence in the merit selection process.

Electoral methods have been studied and scholars have found that judicial elections tend to be ignored by the electorate, with low voter interest and low turnout on election day. Furthermore, the majority of judges in electoral systems are initially selected for interim appointments by the governor to fill vacancies on the bench that occur between elections due to resignation, retirement, or death. This means that at the next election such judges run as incumbents and are often uncontested (which is true for most judicial elections across the board). Research has found that the party label is the most significant factor in the voter’s choice. Merit selection plans have also been the subject of scholarly investigation. The commissions themselves have been found to be characterized by intense negotiation and in some instances commissions have been found to stack the list of names so that the favorite of the commissioners would be the likely person chosen by the governor. The partisan makeup of the commissions has occasionally resulted in partisan considerations being taken into account in preparing the lists.

4. Selection Of Federal Judges In The USA

Judicial selection of federal judges in the USA contains some similarities with selection in the states. Party organizational politics, the politics of policy, and bar association politics all come into play. But because federal judges are nominated by the President, the center of selection activity lies in the executive branch. Participants in the negotiations, particularly for lower-court judgeships include not only Justice Department and White House officials, but also US Senators and other major leaders of the President’s party from the state in which a federal judgeship is to be filled or the state that by tradition expects to be represented on a federal court of appeals. Furthermore, since 1953 the American Bar Association (ABA) Standing Committee on Federal Judiciary has investigated and provided ratings that are transmitted to the executive branch of leading candidates for judgeships. An ABA rating of ‘not qualified’ frequently will result in the nomination being abandoned. But note that, in March 2001, President George W. Bush removed the ABA from the pre-nomination process.

Senators of the President’s party expect to play a decisive role in the nomination of federal district judges from their states. Judgeships in the federal territories (including the District of Columbia), as well as those for the specialized courts and, of course, the US Supreme Court are considered more within the prerogative of the President. But the Senate institutionally has a key role to play in the process as it must confirm a nominee before he or she becomes a federal judge. When the President’s party is in control of the US Senate, confirmation typically is a smooth process. But when there is divided government, the confirmation process has been bogged down in partisan and ideological battles. This is certainly a drawback of federal judicial selection.

In the nomination process, there are several considerations that ought to be mentioned. First is the professional credentials of the candidates. The legal qualifications of candidates are subject to close scrutiny by the Justice Department and the ABA making it less likely that unqualified individuals are appointed. Second is the political reality that typically 90 percent of judicial appointments go to members of the President’s party. Third, senators from the state of the prospective judicial nominee must approve the nominee. Although rarely invoked, a senator can claim senatorial courtesy if the nominee is objectionable to that senator and that means that the senator’s colleagues would refuse to confirm. Fourth is the policy or ideological outlook of the candidate. If an administration sees the judiciary as affecting its policy agenda, as was notable with the Franklin Roosevelt and Reagan–Bush administrations, it will tend to screen judicial nominees to eliminate those antithetical to its policies.

Because the Supreme Court is widely acknowledged to be the judicial policy maker for the nation, appointments to the nation’s highest court have been the subject of keen interest and occasional controversy. A frequent presidential campaign issue has been what sorts of people will be named by the person elected president. Presidents have always been personally involved in the selection of justices and have made their choices based on a variety of considerations including the personal, the political (such as party affiliation and affect on constituent groups in the President’s coalition), and the ideological. During the nineteenth century close to one out of three nominations failed in the Senate. In the twentieth century the proportion was one out of twelve (with four of the five Senate rejections occurring in the last third of the century). Thus confirmability must also be added as a consideration, especially when the Senate is in the hands of the opposition party.

5. Evaluation Of Selection Methods

Does any one selection method produce more ‘good’ judges than any other method? The evidence is scanty and inconclusive that one method produces superior judges or judges with vastly different backgrounds or qualifications, with the exception that appointive methods appear to result in more women and minorities being chosen for the bench. However, not one selection method has been shown to be a superior method for the appointment of judges with the qualities that make for ‘good’ judges or judges whose on-the-bench performance is considered to meet the highest standards. Likewise, the evidence linking the method of judicial selection with judicial decisional trends is inconclusive.

6. Judicial Selection And Its Impact In Countries Outside The USA

For countries other than the USA, relatively little research has been conducted on judicial selection and its impact. The principal judicial selection mode in civil law countries is that which considers the judiciary a form of civil service and part of the government bureaucracy. The judiciary is not considered a coequal branch of government. Judges work their way up the judicial hierarchy—all outside the political appointment process. Judges are typically viewed as conservative supporters of the regime insofar as the regime is responsible for the law that judges must apply. The concept of judicial review is for the most part alien to civil law systems.

The bureaucratic route to a career judiciary may be by a competitive entrance examination that enables those who pass to attend a school for judges (the selection method, for example, in France, Spain, and Portugal) or directly by a competitive entrance examination (the method found, for example, in Belgium, Italy, Peru, and Brazil). Grades on examinations will typically determine first judicial appointments, and subsequent promotions are usually based on seniority and the assessments of senior judges or state ministries of justice. An alternative bureaucratic selection method utilizes a type of apprenticeship without examinations and schooling (as for example in Germany, Argentina, Ecuador, and Chile). Many civil law systems have recently allowed lawyers with a minimum level of professional experience to be candidates for a set proportion of judicial vacancies. Those selected are thus able to substitute their years of practice for the examination, schooling, or apprenticeship requirements.

In England, a common law country, there are some similarities to the USA in that judgeships are not considered a form of civil service and that there is a tradition of political experience and party patronage playing a role in the Lord Chancellor’s selection of judges for the appellate courts (e.g., between 1832 and 1906 Members of Parliament accounted for 58 percent of appointments). In more recent decades the proportion has been dramatically lower. Higher court judges are drawn from the legal elite and tend to be drawn from the upper class. In general, partisan considerations are much more muted in England than in the USA although both countries tend to place an emphasis on professional qualifications. Women and minorities are slowly achieving representation in the ranks of the English judiciary but at a far slower pace than found in the federal judiciary in the USA. For example, in 1990 the Law Lords were all male, while there was one woman on the Courts of Appeals and on the High Court. By contrast, in the USA there was one woman on the Supreme Court, 17 on the US courts of appeals, and 50 on the district courts (roughly 10 percent of judgeships as compared to under 2 percent of the higher English judiciary).

The Appellate Committee of the House of Lords is Britain’s highest court, the functional equivalent of a supreme court although its membership is somewhat flexible. The Law Lords, chosen by the Lord Chancellor although officially appointed by the Queen after consultation with the Prime Minister, are drawn from a narrow pool of lower appellate judges who themselves have risen through the judicial hierarchy. Entry into the judicial profession is from the elite group of barristers known as Queen’s Counsel. The selection process generally favours the appointment of judicial conservatives.

In India, lower court judges are civil servants chosen by competitive examination, but the higher judiciary is appointed from eminent members of the bar. The president has sole authority to appoint Supreme Court justices but is constitutionally required to consult certain government officials, including the Chief Justice of India, before making the appointment. Previous judicial experience is generally required and in practice only those who have served on the High Court of one of India’s states are chosen. There is also a mandatory retirement age of 65. Turnover tends to be higher and here, too, there has been a tendency for judicial conservatism to prevail.

A number of questions initially asked earlier in this research paper cannot be answered definitively on the basis of research conducted thus far. Much more is needed by way of systematic empirical analysis to be able to sketch in the details of judicial selection and its impact around the world. Yet it is clear that any assessment of how justice is administered needs to take into account precisely those considerations of judicial selection.

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