Selection of Judges
| Author | Jeffrey Wilson |
| Pages | 407-412 |
Page 407
The method by which judges are selected in the United States has been the subject of debate that predates the Revolutionary War. The king of Great Britain selected colonial judges but retained considerable power over them. The colonists so resented this power that the Declaration of Independence includes the following statement in reference to injuries that the colonists endured: "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."
The states initially adopted the appointment method for selecting judges. In the early 1800s, the states of Georgia and Indiana modified their laws so that judges of lower courts were selected by popular election. Other states, including Michigan and Mississippi, also provided for selection by popular election by the 1830s. By the time the Civil War began, 24 of the 34 states elected their judges.
Election of judges lost some of its support after the Civil War. Critics charged that political machines had become responsible for the selection of judges like any other type of politician. Judges earned the reputation of being corrupt and incompetent. To combat this perception, a few states chose to elect judges based on nonpartisan elections where judges were not associated with political parties. The idea behind this option was that the parties could not control the judges, but in reality, the electorate had difficulty making decisions without the party labels attached to the judges.
The methods of judicial selection continued to be debated into the 20th century. Some organizations and individuals began to advocate for a method of selecting judges based on merit. Plans for merit selection of judges included provisions that would ensure that candidates would not be limited to friends of politicians, and that the merit of the prospective judge would be the primary factor in determining who could be a judge. Organizations such as the American Judicature Society and the American Bar Association endorsed such plans.
The method judicial selection varies considerably now from state to state. Methods for retaining judges after their initial term has expired likewise vary among the states.
Page 408
Formal requirements vary among the states, although many states do not have strict minimum requirements. Neither the U.S. Constitution nor any federal statute set forth formal qualifications for federal judges. However, other factors may determine who will earn a seat on a federal bench. Although federal law does not require a federal judge to be an attorney, the vast majority of judges have distinguished themselves professionally as lawyers. This becomes even more important at the intermediate appellate court and Supreme Court levels.
Moreover, though certainly not a requirement, judges generally need some record of political activity for two main reasons. First, the prospective judge's service in politics may be rewarded through an appointment to the federal bench. Second, a judge generally needs to have some level of political activity to become noticed by those who select judges in the federal system.
Potential judges for positions on the benches of the U.S. Supreme Court, the courts of appeals and the district courts are nominated by the president and confirmed by the Senate. The president makes nominations after consultation with staff members in the White House and the attorney general's office. Individual members of the Senate and other political operatives may also have a say in the selection of these judges.
Once a judge is nominated, the Federal Bureau of Investigation conducts a routine security check on the nominee. The Senate Judiciary Committee is the body primarily responsible for screening judicial nominees. After conducting hearings on each candidate, the committee forwards its recommendations to the Senate as a whole. The Senate either approves or rejects a recommendation of the Senate Judiciary Committee by a simple majority vote. The decision to approve the judge is a permanent one, for under the Constitution, federal judges serve life terms.
The process by which the chief justice of the Supreme Court is selected is the same as the initial selection of a judge or justice. The president nominates a person to serve as chief justice, the Senate Judiciary Committee reviews the nomination and makes a recommendation, and the Senate as a whole votes whether to accept the recommendation of the Judiciary Committee.
Although most chief justices have previously been associate justices of the Supreme Court, this is not always the case. In 2005, President George W. Bush nominated John Roberts to be chief justice after Roberts previously served on the D.C. Circuit Court of Appeals. Similarly, Warren Berger, a nominee of President...
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