Executive Appointment in the United States

Nomination of public officials by the president or a state’s governor. Executive appointment is established for federal judicial selection by language in Article II, Section 2, which requires the president to nominate justices of the Supreme Court among other officials. A president’s nominee does not become a federal judge until confirmed by the U.S. Senate. Presidents may fill judicial vacancies while the Senate is in recess, but the judge must be confirmed by the Senate when it reconvenes. Executive appointment is also one of the methods of selecting judges of state courts. As at the federal level, most executive (gubernatorial) nominees must be confirmed by a legislative body or special review committee of some kind. In states that use elections as the principal method of judicial selection, governors are permitted to make interim appointments to fill vacancies. Executive appointment of judges is highly political. Presidents and governors alike tend to nominate persons of their own party or who are ideologically compatible. The competence of a prospective nominee is also important, and both presidents and governors take into consideration the evaluations conducted by screening committees established by the American Bar Association or state bar associations.

See Also

Advice and Consent (Judicial Personnel issue) Interim Appointment (Judicial Personnel issue) Nominating Criteria (Judicial Personnel issue) Recess Appointment (Judicial Personnel issue) Senatorial Courtesy (Judicial Personnel issue).

Analysis and Relevance

Executive appointment of judges is a carryover from the colonial period. Delegates at the Constitutional Convention eventually compromised between executive and legislative appointment by adding the requirement of Senate consent to complete federal judicial selection. Presidents generally succeed when nominating justices to the U.S. Supreme Court, although more than 20 percent of the nominees have not been confirmed. The practice of senatorial courtesy applies for selection of lower federal court judges, particularly the U.S. district court. Senatorial courtesy transfers much of the nominating initiative to a home-state senator when he or she shares the president’s party affiliation. With life tenure for federal judges, there are no interim judicial appointments. Presidents can make recess appointments, however. Executive appointment at the state level is somewhat more involved. Most states turned from executive appointment to popular election during the Jacksonian period. Despite various “reform” efforts, election remains the method of judicial selection in a majority of states. Only seven states use executive appointment as their formally designated method of choosing judges. However, executive appointments are common in every state that uses elections because of interim appointments. In an elective state, if a judge cannot complete a term, the governor appoints a successor who serves until the next general election, when he or she may run as an incumbent. Judicial terms tend to be long and vacancies frequent, so governors make many interim appointments. Furthermore, because incumbent judges are seldom defeated in elections, interim appointees usually retain judgeships. Thus, it can be said of many elective states that most of their judges first attained the bench through gubernatorial appointment rather than election. Governors also exercise nominating prerogatives in states that use “merit” selection, although choices are confined to a list of candidates recommended by screening commissions.

Notes and References

1. Definition of Executive Appointment from the American Law Dictionary, 1991, California