Federal Judicial Appointments, Tenure, And Independence

• Author: Shirley Hufstedler
• Pages: 1017-1020

Page 1017

In the federal judicial system the appointment and tenure of judges are governed by the Constitution and by statutes enacted by Congress. Neither the Constitution nor Congress controls the structure of state judicial systems or the appointment and tenure of judges of those courts; under state laws, judges are variously popularly elected or appointed by the governor or another state officer, with or without the consent of the legislature, a commission, or a confirming election. State judges do not have life tenure.

Federal courts are classified as "Article III courts," also known as CONSTITUTIONAL COURTS, and "Article I courts," also known as LEGISLATIVE COURTS. The constitutional courts are those courts specified in Article III, section 1, vesting the JUDICIAL POWER of the United States "in one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish." These judges have lifetime tenure and compensation that cannot be reduced during their judicial service. Legislative courts encompass the remaining adjudicative tribunals that are congressionally established but do not have all of the characteristics required by Article III. Judges of legislative courts are appointed for terms of years; the jurisdiction of those courts is not coextensive with Article III courts' jurisdiction.

Except for recess appointments by the President to fill

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vacancies when the Senate is not in session (Article II, section 1), constitutional Justices and judges hold their offices "during good behavior," as Article III provides. In UNITED STATES EX REL. TOTH V. QUARLES (1955), the Court held that the GOOD BEHAVIOR clause guarantees such judges lifetime tenure, subject to removal only by IMPEACHMENT.

Article II, section 2, requires nomination of Article III Justices and judges by the President "with the advice and consent of the Senate." The role of the Senate under the ADVICE AND CONSENT clause has been debated since the CONSTITUTIONAL CONVENTION OF 1787. The clause was adopted as a compromise in the closing days of the Convention as an alternative to proposals to grant appointing power to the President alone or to the Senate alone; the delegates did not discuss the meaning of the clause.

Senators have variously interpreted their constitutional obligations in proceedings to confirm presidential nominations to the judiciary. Some senators have treated their task as little more than a procedural formality unless the nominee is egregiously unfit for the judicial post to which he or she has been named or a serious flaw in the candidate's background is revealed during the deliberations. Other senators have expansively interpreted their responsibility to "advise" the President, including the advice that the President's choice is wrong. The history of confirmation battles strongly suggests that the fate of a particular nominee more often depends on the political views of the senators than on intellectual differences over CONSTITUTIONAL INTERPRETATION. Apart from the individual characteristics of the nominee and the personal and political philosophies of the senators who act on a nomination, the outcome of the process is heavily influenced by the sensitivity of the judicial post to which the candidate has been named, the existing composition of that particular court, the relative power of the President and the Senate at the time of the nomination, and the prevailing national political climate. The closest senatorial scrutiny is usually given to nominees for the Supreme Court. The obvious reason is the tremendous importance of the Court. Less obvious is that senatorial courtesies do not have the same significance in confirmation of Supreme Court nominees as they do in nominations to district courts and courts of appeals. In the latter instances, the opposition of one senator from the nominee's home state is usually enough to doom confirmation, especially if the senator is a member of the President's political party.

Scant attention was given to the public interest in judicial confirmations before 1929 because, until then, the Senate acted upon all nominations in closed...