Choosing Judges I: State Courts and Lower Federal Courts Artemus Ward Department of Political Science Northern Illinois University

Issues & Goals in Judicial Selection u In thinking about how judges ought to be selected, the opposing issues of judicial accountability and judicial independence are constantly in tension. For example, elections promote more accountability as where merit appointments promote more independence. u Also, both personal and political factors come into play when thinking about judicial selection. l Personal: Judgeships provide relatively high salaries, a secure job, and prestige. So people seek them for personal reasons. l Political: Patronage appointments are a reward for those individuals who are loyal/faithful to the party. Judgeships are also awarded in exchange for the political support of various groups in society such as racial/ethnic minorities.

Judicial Independence u Many believe judges ought to be independent of partisan influences. Yet lifetime appointments leave judges unaccountable to the people. Is there a way to select judges that allows for both independence and accountability? u Merit plans (sometimes called Missouri plans after the first state to try it) are becoming increasingly popular. l The basic idea is to combine elements of the popular political and legal cultures (accountability and independence). The governor will appoint a judge from several lawyers recommended by a nominating panel of five or more people usually including lawyers (often selected by the local bar), non-lawyers appointed by the governor, and perhaps a local judge with the greatest seniority. After serving for say one year, the judge stands for special election. People are asked whether the judge should be retained in office. If approved, the judge has either life tenure or a very long term. u Who is most qualified to choose? Lawyers, governors, the people, political parties? Why?

Selection of State Judges Judicial Elections u Half or more of judges in states with judicial elections are initially appointed. u Judges usually are not challenged for reelection (90% run unopposed). u In some states, though, there are frequent contested elections (especially if party labels are listed on ballots). u At-large elections dilute minority votes and provide for unequal representation on the bench. So, for example, if one area of a city is populated by liberals but the city is overall largely conservative, and four judges are elected at-large, city-wide, it is likely that four conservatives will be elected. But if the city is divided into four districts and one judge is elected from each district, the district that is liberal will likely elect a liberal judge.

Executive & Legislative Appointment of Judges u Political Network - it’s who you know and what you’ve done for the party. l Legislature: If the legislature makes the selection, you should have served if you want to be picked. l Governor: If the governor makes the selection, you should be a contributor or political ally of the governor, or an ally of a mayor or member of the state legislature as these entities can bargain with the governor for judgeships. u Symbolic Appointments – selections are made to appeal to a group for indirect benefit such as selecting a woman in order to court female voters.

Merit Selection (Missouri Plan) u Nominating commission is key - they screen and limit the possible nominees. u Research shows that commissioners are generally older white males and lawyers, businessmen, and other professionals.

Who Are State Judges? u Formal legal education and legal experience is increasingly important. u White men still dominate the judiciary. u State judges have close state & local political ties.

Does the selection system make any difference in determining who becomes a state judge? u Research shows that merit plans produce the same kinds of judges as appointments in terms of education, political backgrounds/experience. u Minorities do best in states where governors and legislatures make appointments. u Partisanship and state politics play a role in every selection method.

Selection of Federal Judges u Involves national and state politics. u Players: the President, Justice dept, Senators, American Bar Association (ABA), various interest groups. u President nominates, senate confirms - this was the compromise agreement among the founders between federal v. state power. u All federal judges have life tenure.

Lower Federal Courts u Political party patronage has historically been the key factor in lower federal court appointments. u Ideology has become increasingly important. u Well over 90% of nominees are at least “qualified” according to the ABA which rates those formally nominated by the president.

U.S. District Courts u Senatorial Courtesy - district courts are located within state boundaries so state party leaders and especially U.S. Senators have tremendous power. u If there is a vacancy in a given state, the senator from the president’s party essentially makes the nomination. If both senators are from the president’s party, the senior senator makes the nomination. If both senators are from the opposition party, the president will consult the highest ranking state official from his party such as a House member, state governor, or state legislator if necessary. u If the president tries to bypass a senator from his party, the senator may “veto” the nomination in the senate. All other senators will support the veto. In this sense, all senators collude with each other to control the nominations of district judges in their own states. u Recent presidents have tried to change this collusive practice. For example, when vacancies occurred, Reagan had senators submit three names to the administration. u Presidents will often consult opposition party senators in exchange for support on other issues.

Courts of Appeals u Since appellate courts cover multiple states, senatorial courtesy does not apply. u Nominations usually rotate among the states in the circuit with senators making suggestions or being consulted. u The more important a senator generally, the more influence they have in appellate court nominees.

Who Are Federal Judges? u Politically visible. u Involved in political activity. u Loyal to the party. u Share values of administration making appointment. u Supreme Court justices are almost always upper-class white males who went to ivy-league schools. u Most judges on lower federal courts had previous judging experience. Half went to ivy-league/private schools. u There tends to be an informal hierarchy of judges moving up from state judgeships to federal judgeships.

Conclusion u Choosing judges is an important part of state and national partisan politics. u Reformers stress qualifications - merit. u Though partisan politics plays a crucial role in judicial selection, those judges selected still have acceptable or superior legal training and government or political experience.