Judges Appointment in the United States

The Politics of Judicial Selection: A Summary

How Federal Court Judges Are Selected:

In the case of Federal Court Judges:

• Often a very political process
• Judges nominated by president and confirmed by Senate
• Can reflect the ideological stamp of the president
• Senatorial Courtesy: A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs.

In the case of Judges of Lower Courts:

• Existence of the Senatorial Courtesy: Unwritten tradition where a judge is not confirmed if a
  senator of the president’s party from the state where the nominee will serve opposes the nomination.
• Has the effect of the president approving the Senate’s choice: President has more influence on appellate level

In the case of Supreme Court Judges:

• President relies on attorney general and the Department of Justice to screen candidates.
• 1 out of 5 nominees will not make it.
• Presidents with minority party support in the Senate will have more trouble.
• Chief Justice can be chosen from a sitting justice, or a new member.

The Appointments to the U.S. Supreme Court follows a nomination Criteria, based on:

• Competence
• Ideology or Policy Preference (Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer’s original intentions).
• Pursuit of Political Support from Various Groups

The Supreme Court Confirmation Process follow this paths:

• Investigation
• Lobbying by Interest Groups
• Senate Committee Hearings
• Senate Vote

Judicial Selection Explained

The president appoints federal judges, with confirmation by the Senate. Under the Constitution, there are no formal qualifications for federal judges. Federal judges serve “during good behavior,” which generally means for life. The notion of the life term was to allow judges to be free from political pressures when deciding cases. Federal judges may be removed from office through impeachment and conviction.

Lower Courts

Because of the large number of appointments made to the lower courts, the Department of Justice and White House staff handles most of these nominations. Senatorial courtesy, the practice of allowing individual senators who represent the state where the district is located to approve or disapprove potential nominees, has traditionally been used to make appointments to the District Courts. Because the circuits for the Courts of Appeals cover several states, individual senators have less influence and senatorial courtesy does not playa role in the nomination process. The Senate tends to scrutinize appeals court judges more closely, since they are more likely to interpret the law and set precedent.

Supreme Court

The higher visibility and importance of the Supreme Court demands that the president give greater attention to the nomination of Supreme Court justices. Presidents only make appointments to the Supreme Court if a vacancy occurs during their term of office. When making appointments, presidents often consider:

• party affiliation – choosing judges from their own political party
• judicial philosophy – appointing judges who share their political ideology
• race, gender, religion, region – considering these criteria may help bring balance to the court or satisfy certain segments of society
• judicial experience – previous judicial experience as judges in district courts, courts of appeals, state courts
• “litmus test” – a test of ideological purity toward a liberal or conservative stand on certain issues such as abortion
• acceptability – noncontroversial and therefore acceptable to members of the Senate Judiciary Committee and the Senate

Presients also consider the opinions of:

• American Bar Association – the largest national organization of attorneys, often consulted by presidents, rates nominees’ qualifications
• interest groups – may support or oppose a nominee based on his or her position on issues of importance to the interest group; use lobbyists to pressure senators
• Justices – endorsements from members of the Supreme Court may help a nominee (O’Connor received strong support from Rehnquist)

The Backgrounds of Judges and Justices

Main characteristics:

• Generally white males
• Lawyers with judicial and often political experience

Other Factors include:

• Generally of the same party as the appointing president
• Judges and justices may disappoint the appointing president

Almost all federal judges have had some form of legal training, have held positions in government, or have served as lawyers for leading law firms, as federal district attorneys or as law school professors. Some federal judges have served as state court judges. Until recently, few African Americans, Hispanics, or women were appointed as judges to the lower federal courts. Lyndon Johnson appointed the first African American, Thurgood Marshall, to the Supreme Court; Ronald Reagan appointed the first woman, Sandra Day O’Connor.

Appointment and Compensation and the Federal Courts

In the words of the Administrative Office of the United States Courts: Justices of the Supreme Court, judges of the courts of appeals and the district courts, and judges of the Court of International Trade are appointed under Article III of the Constitution by the President of the United States with the advice and consent of the Senate. Article III judges are appointed for life, and they can only be removed from office through the impeachment process. Although there are no special qualifications to become a judge of these courts, those who are nominated are typically very accomplished private or government attorneys, judges in state courts, magistrate judges or bankruptcy judges, or law professors. The judiciary plays no role in the nomination or confirmation process. Bankruptcy and magistrate judges are judicial officers of district courts.

The President and Senate have no role in their selection. Congress determines the number and location of bankruptcy judges; they are appointed by the courts of appeals. The district court determines the number and location of magistrate judges and appoints them. Judges of the Court of Federal Claims are appointed by the President with the advice and consent of the Senate. Each court in the federal system has a chief judge who, in addition to hearing cases, has administrative responsibilities relating to the operation of the court. The chief judge is normally the judge who has served on the court the longest. Chief district and court of appeals judges must be under age 65 to be designated as chief judge. They may serve for a maximum of seven years and may not serve as chief judge beyond the age of 70. All federal judges receive salaries and benefits that are set by Congress.

Selection of Federal Judges

The Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.. . judges of the supreme Court.” Although most Presidents choose judges who agree with their policy viewpoints, some authors argue that the Senate should play a more assertive role in the judicial selection process.

The Constitution’s appointment clause … clearly confers upon the president unfettered [unlimited] discretion to name federal judges of his choosing, subject to the Senate’s “advice and consent.” It specifies no minimal criteria or essential qualifications for such judges … and by failing to set out any limits on that power [to nominate judges], the constitutional text indicates that the president’s judicial nominations could also appropriately take the nominees’ views into account.

The Constitution is as silent about criteria for the Senate’s confirmation decision as it is about those for the president’s initial nomination. Accordingly, the text assigns the Senate as open-ended a discretion in the confirmation process as it assigns the president in the nomination process. In exercising that discretion, it is as appropriate for the Senate to consider a candidate’s constitutional and judicial philosophy as it is for the president.

The Senate’s concurrent role in the judicial selection process is also confirmed by the proceedings at the 1787 Constitutional Convention which led to the adoption of the appointment clause. Indeed, until the final days of the Convention, the proposed constitutional text gave the Senate-or, in some versions, the Senate and the House of Representatives-the sole power to appoint federal judges, including Supreme Court Justices.

In contrast, the delegates roundly rejected all attempts to confer this power on the president alone. Referring to the significant separation of powers concerns implicated by the judicial appointment process, Virginia delegate George Mason said that an exclusively presidential appointment power constituted “a dangerous prerogative” that “might even give him an influence over the Judiciary Department itself.”

Only near the end of the Convention did the delegates agree to give the president any role at all in the judicial selection process, by adopting the current appointment clause. The president and the Senate should have a “partnership” relationship in the judicial appointment process. Structural aspects of the Constitution dictate that, in fulfilling their respective roles in the process, each of these partners should consider candidates’ constitutional and judicial philosophies.