Judicial Selection And Nomination Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Courts play an important role in most Western democracies and varying roles elsewhere in the world. Understanding judicial selection offers a window on how justice is dispensed, which is a reflection of how politics and the political system of a given country work.

At the outset, it must be recognized that an independent judiciary is a hallmark of a free society. In the United States, the Framers of the Constitution, mindful of this and also influenced by French political thinker Montesquieu’s work, incorporated the principle of the separation of powers among the branches of government. The judiciary was established as a separate and distinct branch of the federal government. The president was charged with nominating justices, and the U.S. Senate was given the task of deciding whether to confirm the nominee. To guarantee the independence of the federal judiciary, judges were given lifetime tenure, removable only by impeachment by the House of Representatives and conviction after a trial by two-thirds vote of the Senate.

An independent judiciary is impossible and the ability to dispense justice is questionable from a judiciary whose members owe their jobs to an executive who can remove or discipline them at will. However, there is also a serious question of whether there can be a truly independent judiciary if that judiciary is selected or retained by popular election. Indeed, can a judge whose selection and retention is by election be as neutral and objective as a judge with life tenure? Are civil service methods of selection, which are in use in many Western democracies, superior to more political selection methods in producing fair and objective justice?

Judicial Selection Methods

Many judicial selection methods are used in countries worldwide. Legislatures, the chief executive or heads of executive branch departments or agencies, and even members of the judiciary, as, for example, in Sweden, participate to varying degrees in selection processes. In the United States, five methods are in use by the states and one used by the federal government. More than three-quarters of the states elect some or all of their judges at general elections in which individuals run for judicial office as members of a political party (partisan elections) or are required by law to run without a party affiliation (nonpartisan elections). About one-third of the states use the merit plan to fill some or all their judgeships, and this method involves a nominating commission submitting to the governor a list of names to fill a particular judicial position. The governor by law must make the selection from that list. Five states and the federal government select their judges by appointment of the chief executive with the approval of another body, typically the executive council or senate. Three states use the legislature to select some or all their judges, with the governor having no constitutionally mandated role in the process.

In practice, scholars have found that all these methods in use in the United States involve politics of one sort or another. Studies of electoral methods have found that judicial elections, particularly at levels below the highest state court, tend to be ignored by the electorate, with low voter interest and turnout. Furthermore, the majority of judges in electoral systems are initially selected for interim appointments by the governor to fill vacancies on the bench that occur between elections due to resignation, retirement, or death. This means that at the next election such judges run as incumbents and are often uncontested.

Research has found that the party label is the most significant factor in the voter’s choice: judges who are Democrats tend to be more liberal than judges who are Republican.

Judicial selection of federal judges in the United States has some similarities with selection in the states. Party organizational politics, the politics of policy, and bar association politics all come into play. But because federal judges are nominated by the president, the center of selection activity lies in the executive branch. Participants in the negotiations, particularly for lower-court judgeships, include not only Justice Department and White House officials but also U.S. senators and other major leaders of the president’s party from the state in which a federal judgeship is to be filled or the state that by tradition expects to be represented on a federal court of appeals.

The professional credentials of judicial candidates are subject to close scrutiny by the Justice Department, but the political reality is that typically 90 percent of judicial appointments go to members of the president’s party. Furthermore, the policy or ideological outlook of the candidate is important. If an administration sees the judiciary as affecting its policy agenda, as was notable with the Franklin Roosevelt, Reagan, and two Bush administrations, it will tend to screen judicial nominees to eliminate those antithetical to its policy agenda. The U.S. Senate in more recent decades has played a more active role in the confirmation process, with nominees perceived as being either too far to the political left or political right running into difficulty, but presidents can use their appointment powers to move the judiciary in a more liberal (as was the case with the Carter and Clinton appointees) or more conservative directions (as was the case with the Reagan and the two Bush appointees).

Judicial Selection Around The World

For countries other than the United States, relatively little research has been conducted on judicial selection and its impact. The principal judicial selection mode in civil-law countries is that which considers the judiciary a form of civil service and part of the government bureaucracy. Judges work their way up the judicial hierarchy—all outside the political appointment process. Judges are typically seen as defenders of the regime insofar as the regime is responsible for the law that judges must apply.

The bureaucratic route to a career judiciary may be by a competitive entrance examination that enables those who pass to attend a school for judges (the selection method, for example, in France, Portugal, and Spain) or by solely a competitive entrance examination (the method found in Belgium, Brazil, Italy, and Peru). Grades on examinations typically determine first judicial appointments and subsequent promotions usually are based on seniority and the assessments of senior judges or state ministries of justice. An alternative bureaucratic selection method uses a type of an apprenticeship without examinations and schooling (as with Argentina, Chile, Ecuador, and Germany). Bureaucratic selection systems tend to produce a more conservative judiciary.

In England, a common-law country, there are some similarities to the United States in that judgeships are not considered a form of civil service and that there is a tradition historically of political experience and party patronage playing a role in the Lord Chancellor’s selection of judges for the appellate courts. Higher court judges are drawn from the legal elite. In general, partisan considerations are much more muted in England than in the United States, although both countries tend to place an emphasis on professional qualifications. The selection process generally favors the appointment of judicial conservatives. More systematic empirical analysis is needed to sketch in the details of judicial selection and its impact around the world.

Bibliography:

Abraham, Henry J. The Judicial Process. 7th ed. New York: Oxford University Press, 1998.
Associated Press. “Britain’s Newly Minted Supreme Court to Hear First Case.” USA Today, October 4, 2009, www.usatoday.com/news/ world/2009-10-04-british-supreme-court_N.htm.
Binder, Sarah, and Forrest Maltzman. Advice and Dissent: The Struggle to Shape the Federal Judiciary. Washington, D.C.: Brookings Institution, 2009.
Blom-Cooper, Louis, Gavin Drewy, and Bruce Dickson. The Judicial House of Lords: 1870–2009. Oxford: Oxford University Press, 2009.
Bonneau, Chris W., and Melinda Gann Hall. In Defense of Judicial Elections. New York: Routledge, 2009.
Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan. New Haven, Conn.:Yale University Press, 1997.
Goldman, Sheldon, Sara Schiavoni, and Elliot Slotnick. “W. Bush’s Judicial Legacy: Mission Accomplished.” Judicature 92, no. 6 (May–June 2009): 258–288.
Report of the Council of Europe Commission for the Efficiency of Justice, country replies, 2006, www.coe.int/t/dgl/legalcooperation/cepej/ evaluation/2006/Table2006_en.asp.
Steigerwalt, Amy. Battle over the Bench: Senators, Interest Groups, and Lower Court Confirmations. Charlottesville: University of Virginia Press, 2010.

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