Judges
The Position of Judge
The public holds the judge the most responsible for ensuring that the system operates fairly and impartially.
The Judge is one of the most recognizable symbols the the justice system
Powers of the Judge
Formal powers of the judge are everywhere, from arrest to final disposition
set bail or revoke it
Determine sufficient probable cause
rule of pretrial motions
accept guilty pleas
preside over trials
Their work is incredibly varied
Chambers - private office of a judge
Benefits of the Job
Judges have a high level of prestige
Being called “your honor”
The court stands when they enter or leave
Federal judges serve for life (and some states)
Terms for state judges are 6 - 10 years
Becoming a judge is seen as the capstone for many lawyers
Judges have a high salary
$118,358 - $201,100
More secure than private practice
Sometimes though it can be a decrease for successful lawyers
Judges can choose who they work with
bailiffs, clerks, court reporters, probation officers, and secretaries
Frustrations of the Job
Judges have heavy caseload and administrative problems
Trial judges can act more like administrators moving cases rather than judicial sages
Judges actions are limited by the system
late lawyers, documents get lost, jails are crowded
Criminal court judges occupy the lowest rung within the judicial system
Some judges prefer civil court (more peaceful)
94% of judges say their major complaint was the lack of regular pay raises
Judges Within the Courtroom Work Group
Judges are not the principle decision maker in court rooms
They are constrained by the actions of other members of the courtroom work group
Accept bail recommendations by prosecutors,
Plea agreements by defense attorneys
Sentence recommendations by probation officer
Sanctions can be applied against judges by the courtroom work group
Prosecutors and Defense Attorneys can delay cases by requesting continuances or failing to have witnesses present
Judges who fall behind can get pressure from other judges (chief justices especially)
Can be transferred to less desirable duties
As the most prestigious member of the group, judges can also bring pressure to other members of the courtroom work group
Their opinion means a lot
Lawyers do not want to get yelled at by a judge in public
The amount of influence judges have over the courtroom work group depends.
Some are active participants who run tight ships
Others are “laissez-faire” and hands out continuances like candy
Judge shopping
Defense attorneys use continuances and motions for a change of justice to have their client’s case be heard in front of a favorable judge
Judges differ in the type of sentences they hand out, way they run the courtroom, number of cases they have pending
Varying Roads to a Judgeship
Which lawyers are chosen to be a judge is determined by formal selection methods and informal procedures
Formal Selection methods are way less important than informal methods
How selection happens establishes formal routes to being a judge. But what happens when a judicial vacancy occurs
Appointment by govenors and merit selections often fill vacancies
who is ultimately selected for a interim position often fill the position full time
There are 3 major methods of judicial selection:
Executive appointments,
Popular Election
Merit Selection
Executive Appointments
In the early years of the US, judges were appointed by the executive or elected by the legislature
Currently, this only happens in a handful of jurisdictions
Two states use being elected by the legislature
Three states use appointment by the govenor
Nominations to the Federal Branch
US constitution says the president can nominate judges with the “advice and consent of the senate”
Both the president and the Senate have a voice in the selection process
When district or circuit court judgeships are vacant, the Office of Legal Policy in the US Department of Justice and the White House Counsel search for qualified lawyers
They consult their political party leaders of the state in which the vacancy has occurred, US Senators, and prominent members of the bar
Known to take around a year
After the president has officially submitted a nomination for a vacant judicial post, the Senate now takes over
First, the Senate Judiciary Committee conducts a hearing
Next, the full senate usually confirms
If the nomination is controversial, the committee hearing and senate vote become the focus of political activity
Filibusters, vacancies, etc…
Senators also influence the federal judicial selection through the informal power of senatorial courtesy
Senators expect to be consulted before the president nominates a person for a judicial vacancy from the state if the president belongs to the same party
If a senator is not consulted, they may declare the nominee personally unacceptable and and other senators will follow suit
Senators can then recommend people who they think would be qualified or exercise a direct veto
The Role of the American Bar Association and Other Interest Groups
American Bar Association (ABA) - The largest voluntary organization of lawyers in the United State
Has no formal role in the screening of nominees for the federal branch
has played an influential role through its Standing Committee on the Federal Judiciary
Traditionally investigated judicial nominees by consulting with members of the legal profession and law professors
Would rank the nominees through “exceptionally Well Qualified” Through “Unqualified”
President would not nominate someone who was “unqualified”
The Deputy Attorney would therefore use the ABA’s recommendations prior to the official nomination
The role of the ABA has diminished over the past decade due to the political bias of the ABA’s ratings of candidates
The role of the ABA has been eclipsed by other interest groups
Federalist society, Common Cause, NAACP, the National Women’s Political Cause
When they elect certain judges that are sympathetic to their cause, it benefits then politically
They pull out all the stops to influence who is nominated and who gets confirmed
Nominations to the US Supreme Court
In theory, nominations to the US Supreme court do not differ from other nominations to federal courts
President nominates → US Senate confirms → They are a judge!
But since it is the highest court in the land, the politics take center stage
Supreme court judges have life tenure
When a vacancy opens, the executive branch create a short list of people who meet the criteria
US supreme court justices attended ivy league law schools, all have been attorneys, most spend time in private law, been a government lawyer, been a judge prior, 1/3 have been veterans
The political Ideology of the nominee is important.
Liberal president → Liberal Nominee
Conservative President → Conservative Nominee
It is hard to determine how a nominee will vote if confirmed (Amy Coney Barrett is somewhat liberal in her decisions)
Presidents could also want to diversify the supreme court
Can the nominee get a confirmation in the senate?
Undergo a background check, evaluation by the ABA, media and interest groups weigh in
Executive Appointments in the States
Gubernatorial Appointments - Method of judicial selection in which the governor appoints a person to a judicial vacancy without an election
State appointive systems resemble the presidential system.
Governors can often use this power to their political advantage, choosing people who would support them
Election of Judges
Majority of states use some form of election to select some of their judges
Very “American” invention as it democratizes the political process
Some states elect judges though partisan elections
Nominee’s political party is listed on the ballot
Majority of states use nonpartisan elections
Whether partisan or nonpartisan → partisan influences are present
candidates are endorsed/nominated by their party, support during campaigns, identify with political labels
Traditionally, these campaigns have been “low-key” that have no controversy and little turnout
Candidates stressed general themes of justice and being “tough on crime”
Local lawyers rarely challenge a sitting judge for their seat
Judicial Elections - Method of judicial selection in which the voters choose judicial candidates in a partisan or nonpartisan election
Mudslinging and attack advertising is becoming more and more common
Interest groups can spend millions to back their preferred candidates
Republican party v White - candidates for judicial office are free to announce their views on key issues
Merit Selection
“Remove the courts from politics” - the voters don’t know which lawyers would make good judges
Missouri Bar Plan - The name given to a method of judicial selection combining merit selection and popular control in retention elections
Merit plans are hybrid system incorporating elements from other judicial selection methods
Gubernatorial appointment, popular election, citizen involvement
Most important: formalized role for the legal profession
Establishment of a judicial nominating commission who suggest a list of qualified nominees to the governor. The governor then chooses someone from that list
Retention Election - An election in which voters decide if a sitting state court judge should be retained on the bench or relieved of judicial office
The length of the probationary appointment varies state to state (1 year to 12 years)
Question is: should this judge remain in office? Options are “yes” or “no”
If the judge gets a majority “yes” then he remains in office for a full term
Most judges get a healthy margin of support (70%)
Supporters of the Missouri Bar Plan say it improves judge selection and remove politics from courts
they mean it removes “partisan” politics
In 1940 - 1988, 15 states adopted some type of merit selection system and currently about half of the states use merit selection
Consequences of Judicial Selection
Debate over the best method for selecting state judges has ranged for decades
Partisan and nonpartisan elections
Critics say that elections are inconsistent with the principle of judicial independence
Should political parties have a say in our judicial system?
Which System is Best?
Which system produces better judges?
It is impossible to determine what “best” really is
Different question: Do judges selected by one method differ from those selected by another?
from the individual people who want to be judges, the method makes a small difference.
Legislators choose former legislators
Governors choose former state officials
When elections are held, people who have held local public office are chosen more
In a broader sense, methods of judicial selection has a marginal influence on the types of lawyers who become judges
What about the quality of the judging?
Merit selection has the following:
Merit removes out unqualified people
Judges do not have to ask people for money when they are campaigning (Williams-Yulee v Florida Bar, 2015)
Professional qualifications are emphasized
Political credentials are not cared about
Judges chosen though merit selection do not try cases with attorneys who gave them campaign contributions
More qualified applicants are more willing to be selected
Scholars are divided on this issue
there is no systematic evidence that supports one selection over the other
Judicial quality is worse in states that use elections
One study found that merit selection produces fewer unfit judges
Judges who are elected due to partisan decisions have to deal with them being elected next term
Judicial-selection methods may influence case outcomes
Sex-discrimination claims occurred way more in states that had election systems
Appointed judges reversed criminal convictions for constitutional violations at a significantly higher rate than elected judges did
Similarities in Judges’ Backgrounds
Judges share similarities which may be of more importance than their differences
Most judges are upper middle class men, white, protestant,
Judges are becoming more and more like the diversity of Americans
Most judges were born in the community that they currently serve
Judges are rarely newcomers to politics, Most have held a non-judicial political office before
Diversity and the Judiciary
The dominant profile of judges has begun to change
Since Carter’s presidency, an increasing number of federal court vacancies are filled with female judges (both democrats and republicans)
The Federal Judicial Center does not report about judges sexual orientation
news suggests that at least 12 federal judges are openly gay
State judges are more complicated
Currently, the number of women judges are 5,596 out of 18,006 (31%)
There has been an interest in probing the “difference” women bring to the bench.
are women judges more labral than their male counterparts?
How would this effect rape, self-defense, or diverse cases?
Other studies find that there is no gender difference among judges
Having women on the bench adds legitimacy to the justice system
There are little African American judges
there is a lack of black lawyers
no lawyers → no judges
More likely to be found in states using appointment by governor/legislature
Judging the Judges
Judicial selection recruits people
Judicial education programs help judges learn the role
What should be done about unfit judges?
Very few judges do not fulfil the minimum standards
senile, prejudices, vindictive, lazy, corrupt
Judicial Independence
Judicial Independence - Normative value that stresses a judge should be free from outside pressure in making a decision
Critics can try to remove a judge from office not just because of their misconduct but because they disagree with the judge’s ruling
When judges in Iowa voted that banning gay marriage was unconstitutional, they were voted out
Judicial independence is not the end → it is focused on benefitting the judged, not the judge
Judicial Performance
Sandra Day O’Connor was a passionate advocate for judicial independence
argued that judicial accountability increases judicial independence because the public is more likely to support the judiciary when they have confidence in their judges
Proponents of judicial elections argue that it makes judges accountable to the public
Critics say that the public can vote out judges who make unpopular, but correct decisions
Judicial Performance Evaluations (JPEs) - The mechanisms used to assess how judges preform their jobs, often using a combination of ratings from lawyers assessing competency, fairness, and temperament, as well as objective metrics, like caseload processing
consist of questionnaires for lawyers, jurors, other judges, court observes, courtroom work group
Gather data about a judges impartiality, law knowledge, legal reasoning, clarity, timeliness, oral/written communication
They provide feedback to the judges to improve their performance, and they provide the public with information about the judge
Are JPEs fair to women and minority judges (bias in who is reporting)
Judicial Misconduct
Removing or discipling judges balance between judicial accountability and judicial independence
must deal with the wide range of misbehaviors
Most likely involves corruption (bribes /fixing tickets)
Judges whose mental abilities have diminished (old age)
States can impose age restrictions on Judges and it does not violate the Federal Age Discrimination in Employment Act
Formal Methods include recall elections and impeachment proceedings
More likely is dealing with the Judicial Conduct Commission
State Judicial Conduct Commissions
California was the first state the adopt a modern system for disciplining judges
Judicial Conduct Commission - An official body whose function is to investigate allegations of misconduct by judges
an arm of the state’s highest court
made up of judges, lawyers, laypersons
If the commission finds in favor of the judge, the investigation is closed and the matter is permanently concluded
If the complaint has merit, the commission can recommend a sanction of private admonishment, public censure, retirement or removal
the state supreme court has the final power to discipline judges
Prefers to act informally
The judge has the opportunity to speak and rebut the charges
The larger the commission’s budget, the more disciplinary actions are taken
Federal Court and Disability Act
Judicial Councils Reform and Judicial Conduct and Disability Act
lays out how to act on complaints of federal judges
Initially heard by judicial councils
If there is evidence, council sends a report to the Judicial Confrence, which may recommend that the US House start impeachment procedures
Article 2 of the constitution allows for the removal of the president, VP, or civil officers of the US
Impeachment - allegations of wrongdoing (grand jury indictment)
The house votes on impeachment
Conviction is done by the senate after impeachment
Before 1980, only 4 federal judges were removed
some misconduct was dealt with informally
in 2003, an attorney filed an ethical complaint under the Judicial Conduct and Disability act
Led to the Breyer Commission which said that while circuit and judicial councils were doing a good job handling complaints, approximately 35% of “high profile complaints” were mismanaged
Judicial Ethics
Judges play a large role in enforcing legal ethics
Contempt - failure or refusal to obey a court order, may be punished by a fine or imprisonment
In civil cases, lawyer may accuse opposing counsel of an ethical violation
Judges are subject to additional ethical constraints
ABA created the Model Canons of Judicial Ethics
each state has its own canons
Baseline cases for sanctions involve judges who DUI or are slow in issuing decisions
public assumptions about the levels of judicial misconduct are not created with evidence
State supreme courts can deal with this by providing through, well reasoned opinions and making them accessible to the public
Prohibition on conduct is another requirement of canons of judicial ethics (a judge having extramarital affairs)
Tension between electing judges and apparencies of impropriety is a major issue in judicial ethics
Republican Party v White, supreme court allowed candidates for judicial office to discuss issues that might come before the court and to criticize past court decisions
Allows for negative campaign ads
Erodes public trust of an impartial judiciary
Caperton v Massey Coal, judges must recuse themselves from cases that have a large campaign contributor as a part of the case
In Williams v Pennsylvania, a prosecutor hid and manipulated a witness to secure a victory in a death row case. When this came to light, the prosecutor was a PA supreme court justice and did not recuse himself from the case appealing the death row conviction
SCOTUS said that there was a impermissible risk of actual bias when a judge had a significant, personal involvement as a prosecutor
A multimember court cannot have its neutrality undermined.