Choosing the Judges who Choose the President

• Author: John Copeland Nagle
• Position: Professor, Notre Dame Law School
• Pages: 499-521

Page 499

John Copeland Nagle: I am grateful for the opportunity to participate in the symposium on judicial elections held by the Capital University Law School on January 30, 2001.

George W. Bush might not be the forty-third President of the United States but for the United States Supreme Court. Al Gore's own candidacy for the Presidency would have ended two weeks earlier had it not been for two decisions of the Florida Supreme Court. This unprecedented-albeit unsolicited¹-judicial involvement in the election of the President provoked unimaginably hostile attacks upon both courts. Bush's supporters accused the Florida court of distorting state election law and ignoring federal statutory and constitutional requirements in an effort to facilitate the election of Gore. When the tables turned a few days later, Gore's supporters voiced the same charges. It was not a happy time to be a judge.

These events occurred in the midst of a longstanding debate concerning the best method of choosing the individuals who will serve as judges. State court judges have faced strongly contested elections. On the same day that voters selected the President, elections for state court judgeships attracted an unprecedented amount of money and attention in Ohio, Michigan, and elsewhere. Likewise, federal judicial nominees have confronted increasingly skeptical senators and hostile interest groups. The appointment of federal judges was an issue in the presidential campaign itself.² Even after the election was resolved, President Clinton demonstrated his frustration with the federal judicial selection process by naming Roger Gregory to a position on the United States Court of Appeals for the Fourth Circuit, the first recess appointment by a lame-duck president in recent memory.³ The circumstances Page 500 of President Bush's election, combined with the closely divided Senate in the 107th Congress, have greatly complicated the confirmation of Bush's judicial nominees.

The stakes for the selection of judges have never been so high. Federal and state court judges have ruled on such divisive issues as education funding, exclusionary zoning, capital punishment, same-sex marriages, school prayer, affirmative action, partial birth abortion, and legislative redistricting. And all of that occurred before the courts were called upon to intervene in the selection of the President of the United States.

The selection of those who possess such awesome powers is bound to be contested. But the mode of choosing judges is a secondary question. The debate concerning the selection of judges is fueled by a broader debate about the appropriate role of judges. If one feels passionately about a particular substantive issue or a conception of the judicial power, and if the individuals who wish to serve as judges are seen to hold contrasting views on those issues, then it is perfectly understandable why the selection of judges has become such a flashpoint for the most intractable social issues that states and the entire nation confront today.

The procedures for choosing those judges are caught up in this larger substantive debate, and rightly so. Any effort to identify the "best" candidates for judicial office presupposes a vision of an ideal judge or an ideal judiciary. For some, that vision seeks a diversity of life experiences and individual characteristics. For others, the vision focuses on how the legal expertise that a prospective judge brings to the judicial office. But those profound questions begin to fade when selecting a judge who must decide presidential election contests or questions of life and death. Then judicial philosophy becomes paramount.

The primary importance of judicial philosophy only begins the debate on the best mode of judicial selection. Neither judicial elections, nor merit based Page 501 systems, nor executive appointments, nor a hybrid combination of those means can claim to consistently produce judges who possess the preferred judicial philosophy. Instead, the effectiveness of each method depends how they are employed. A variety of innovative responses like those proposed by Paul Carrington,⁴ and the creative application of the diverse existing systems, holds the most promise of ensuring the accountability of judges to both the rule of law and to the People.

I.

There are two principal methods of selecting judges in the United States: appointment and election.⁵ The federal judiciary illustrates the best-known process for the appointment of judges. Article II of the United States Constitution provides that the President appoints Justices subject to the advice and consent of the Senate.⁶ The current members of the Court were appointed by five different Presidents: three by President Reagan, two each by Presidents Bush and Clinton, and one each by Presidents Ford and Nixon.⁷They all received the consent of the Senate, albeit with varying degrees of support, unlike one of President Reagan's nominees and two of President Nixon's.⁸ Federal court of appeals and district court judges are appointed through the identical process, with somewhat more mixed results for presidential judicial nominees facing Senate confirmation. Once in office, Article III of the United States Constitution grants life tenure to federal judges, subject only to impeachment by the Senate.⁹

The federal judicial appointment process is the most familiar way of selecting judges, yet the election of judges is more common in the United States. Nearly twice as many states rely upon elections to select judges than rely upon executive or legislative appointment.¹⁰ Elective judiciaries emerged in the early nineteenth century due to a confluence of motivations.¹¹ Some Page 502 judicial elections today are partisan, while others are nonpartisan.¹² Judicial candidates are often subject to a special set of ethical canons modeled on those promulgated by the American Bar Association.¹³ In other respects, judicial elections are like other elections.

A hybrid model combines the initial appointment of judges with periodic retention elections.¹⁴ Florida uses such an approach. The Governor of Florida appoints the seven justices of the Florida Supreme Court.¹⁵ Of the current justices, Governor Lawton Chiles appointed five, Governor (and now Senator) Bob Graham appointed one, and Chiles and incumbent Governor Jeb Bush appointed one jointly.¹⁶ Once in office, the justices must be approved in retention elections every six years.¹⁷ The current justices have all survived their periodic retention elections, though not for want of opposition.¹⁸ Justice Harry Lee Anstead will likely face electoral opposition in 2002 for joining the court's 4-3 majority opinion that, at least momentarily, revived Gore's presidential hopes.¹⁹

II.

How judges should be chosen depends upon what kind of judges are desired. The history of judicial selections suggests three general criteria for identifying a desirable judge. One criterion emphasizes the representation of diverse groups within the judiciary. Geographic diversity was crucial throughout the nineteenth century.²⁰ Certain positions on the Supreme Court Page 503 were viewed as the "New England seat" or the "Southern seat," to be occupied only by jurists hailing from that part of the nation.²¹ Religious diversity has also been important on occasion, particularly since the implicit establishment of a "Jewish seat" on the Court with President Wilson's appointment of Justice Brandeis.²² More recently, racial and gender diversity has played a significant role in appointments throughout the federal and state judiciary.²³

In each instance, the premise of the selection is that there is a virtue in selecting judges belonging to different groups within the state or the nation.²⁴The benefit can be to the court if one believes that the inclusion of such diversity improves the work of the court itself. The benefit can also extend to the groups themselves if their perspective is included within the judiciary. The Court has implicitly recognized the force of this model by holding that state court judges are "representatives" within the meaning of the federal Voting Rights Act.²⁵

A second approach seeks the selection of the "best" judges as determined by some objective measure of judicial qualifications.²⁶ These measures can include wisdom, legal skills, and judicial temperament. Or they can emphasize the impartiality of the judge as evidenced by the absence of any bias toward campaign contributors and other parties, partisan considerations, or judicial philosophy. The various merit selection schemes employed and proposed for the selection of state court judges rest upon the belief that such characteristics are both measurable and most appropriate for the selection of judges.

The third general approach to judicial selection considers the substantive perspective of a judicial candidate. This perspective can be gleaned either from indications of general judicial philosophy or from positions on particular substantive issues. The repeated calls for judges that will interpret the law instead of make the law suggest a quite different judicial philosophy from admonitions to select judges who will employ all of their powers to do justice. Likewise, several issues have dominated the selection of federal and state Page 504 judges. The right to an abortion has been especially prominent in the appointment of many recent Supreme Court Justices, lower federal court judges, and state court judges.²⁷ Capital punishment provides another example, as illustrated by the failure of Rose Bird and two of her colleagues to win the retention election necessary for her to continue to serve on the California Supreme Court; the defeat of Tennessee Supreme Court Justice Penny White and Mississippi Supreme Court Justice James Robertson in retention elections; and most recently by the Senate's refusal to confirm Missouri Supreme Court Justice Ronnie White to a federal district...