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Ask Civics 101: How Do Judicial Appointments And Elections Work?

Today's Ask Civics 101 question: how do judicial appointments and elections work? Read on, or listen to this short podcast episode for the answer.

Do you have a question for the Civics 101 team? Click here to submit it.

A recent high-profile example is Associate Justice Amy Coney Barrett who was appointed by President Trump and confirmed by the U.S. Senate. 

Amy Steigerwalt, professor of political science at Georgia State University explains, "At the federal level? The Constitution lays out that Article III judges follow the same process that other top officials do in the United States government. They are nominated by the president, by and with the advice and consent of the Senate. That is the sum total of information that we are given about this." 

Article III Justices are those referred to in Article III of the Constitution. That’s the Article that says there shall be a Supreme Court, Congress can also make inferior courts, and Justices hold office during "good behavior." Good behavior has by and large been interpreted to mean "indefinitely," or for life.

Congress has indeed established inferior federal courts in the United States. There are courts of appeals, district courts and a Court of International Trade. All told, there are currently, in 2020, 870 Article III judgeships. When someone dies or retires, the president gets to appoint someone to fill that seat and the Senate confirms.

"Judges, justices of the United States and federal judges that serve on the circuit courts and the district courts," Amy explains, "cannot be removed from office involuntarily except through either impeachment or death. Otherwise, they are on there until they decide that they don't want to be a judge any longer and retire."

The idea here is to have judicial independence - to have justices who won’t be swayed by politics over the course of their career because they don’t have to appeal to the political landscape. They don’t have to prove themselves to parties or the voter. There are, however, justices in the country who have to be concerned with appealing to the electorate. When we look at the state system, we often encounter the judicial election.

"Judicial elections," Amy says, "particularly came about through a movement. It kind of started at various times, but really culminated in around sort of 1960s and 1970s, 1980s in the American states with a lot of people arguing that judges on some level that judicial independence had given them way too much power, that they were too disconnected from the people. There was no accountability. There was no ability to say you are doing a bad job and therefore we want to get you out of office. Instead, there was this really high bar to get someone out of office, which was impeachment, because a lot of the states had adopted the federal government system of the same way."

The federal government system being appointed justices. And plenty of states have some form of judicial appointment for state courts, whether it’s the governor appointing or a commission or some combination of both. Still, plenty others hold elections. These elections are sometimes partisan, with Justices affiliating themselves with a particular party, and sometimes non-partisan.

"It's more likely when you have this competitive elections that they're not that they're nonpartisan to try to give some disconnection from kind of the normal politics," Amy says.

There’s also a special kind of election that crops up in states that have an appointment process. This is called a “retention election.” A justice is appointed, and then after some specified period of time, voters are asked to consider whether they think this person should remain on the bench. 

There’s a vote, and that incumbent judge either gets to stay or is removed. Not all agree that the judicial election is good for the legal system, however.

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"Those for judicial independence say that judicial elections are really undermining our legal fabric. They are turning judges into rank politicians who have to worry about getting campaign donations, who have to worry about currying favor with constituents. There are studies that show that as judicial elections come closer, judges will in fact change their votes. They are much more likely, for example," Amy explains, "to hold off criminal convictions as opposed to striking them down due to concerns about backlash from voters. So that's sort of version number one."

The upside of elections? Judicial accountability. 

"It is important to have people paying attention to what is going on in the legal system of having a say of who their judges are and the decisions that are being made. So it has benefits in the sense of ensuring that the public is paying more attention to what's going on in the courts is exerting sort of more say within that. And it also is a way to keep judges in line so that they don't issue sort of wildly problematic decisions without any way of the public or the other branches being able to rein them back in. And it's also a way to really handle corruption much better than the other system."

There are groups out there who have floated the possibility of an accountability system for Article III justices as well. To eliminate their lifetime appointment would require Constitutional amendment - a near impossibility given the requirements.

"And so the sort of leading advocates of changes are less about judicial elections, Amy says, "and more about either terms. So you serve for 18 or 20 years and then you're done. Sometimes it's about age limits or removal. But I would say probably the most prominent one that I've seen is actually less about switching to an election system and more about putting in term limits. And there is at least there's a little bit of debate about whether or not that would be possible vis a vis ordinary legislation through Congress. [...] The other issue is the people who would make the final determination on that would be, of course, the justices whose potential seats would be in jeopardy."

Hannah McCarthy first came to NHPR an intern in 2015, returned as a Fellow the following year and then bounced around as a reporter and producer before landing as co-host of Civics 101. She has reported on everything from the opioid epidemic to State House politics to haunted woods of New Hampshire.
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