Chapter 6

• Jurisdiction: United States

Chapter 6 The Appointment and Tenure of Judges

By one count there are more than 10,000 state court judges in the United States. There are about 1,500 federal judges if we count magistrate judges and bankruptcy judges (and we should). There are, in both systems, a large number of administrative law judges. We do not discuss this last group in this book because there are too many variations to present clearly in a short volume like this.

Nonetheless, this is a very large number of judges, and judges wield considerable power. So it is important to understand where these people came from.

Being a judge is a high honor and the peak of a career for most lawyers. In most of Europe and much of the rest of the world, there is a specific route for becoming a judge: training. Some law students choose to prepare for judgeships, not for practicing law. When they graduate they begin a sort of apprenticeship, which evolves into a low-level judgeship then more training and possibly higher-level judgeships.

In the United States (as well as some other English-speaking countries), the path to becoming a judge depends on the method of judicial selection in each jurisdiction. In some states, judges are elected. In others, they are appointed (usually by the state governor). Still other states use a mixed approach of appointment for a term of years and then continuation if the voters approve.

In the federal system, we think of judges as being appointed by the president and confirmed by the Senate. And that view is basically correct. Yet there are hundreds of federal judges chosen by other methods, but discussing each of the paths for many types of lower judges would take a very long time and not be of much practical value.

We will go through all three approaches with some emphasis on what types of judges each system tends to favor and how that approach affects important values such as judicial independence. It is an important subject.

But let's begin with one basic fact: With minor exceptions, all American judges are lawyers, and the great majority of American judges, federal or state, have been chosen from among the ranks of trial attorneys. These are the lawyers who specialize in litigating usually before juries. The reason these lawyers are selected as judges is fairly simple. Most judges are at the trial level. They preside over litigation. Even appellate judges, who usually do not preside at trials, need to have a deep understanding of how trials proceed to review claims of error.

Many trial lawyers enjoy being litigators. They get satisfaction out of being the champion...