The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.
– Sandra Day O’Connor
By Winston Smith
Our governmental institutions have become center stage in our current political climate. When the impeachment of high government officials is a true possibility we must make sure that our judicial institution is as stable, clear, and unbiased as possible. I harken back to our earlier Op/Ed to further clarify that true, functioning democracies must have independent, unbiased judicial systems to keep our officials in check.
This responsibility of checking our leaders and ourselves comes down to our judges. Judges perform an integral role in our judicial system as they are the final interpreters of the law. The judge must perform their duty as impartially and equitably as possible so as to not favor either side of the case before them. The judiciary must function in this way to be effective and legitimate in imparting justice into our society. As a result of this, it important to look at the ways in which judges are nominated and put into their positions. The way in which individuals are put on the bench is of utmost importance as this is one of the primary ways external actors can impart undue influence on the judiciary.
The selection system of judges in the United States is heavily dependent on which level in the judicial system that the court presides in, with wide differences between State and Federal selection processes. Even between states, there is significant variability in the way each state appoints their judges to the bench. There are five common ways in which the states go about appointing their judges: legislative appointment, executive appointment, nonpartisan election, partisan election, and merit selection.
The legislative appointment model is a simple model where the state legislature appoints judges. There are only two states, South Carolina and Virginia, which still use this method of judicial nomination.
In the gubernatorial appointment model, the governor appoints a judge to then be confirmed by the state legislature. This system has also been mostly abandoned, with only Maine, California, and New Jersey still using this type of judicial appointment.
The partisan election process has judicial candidates running in a party primary to win the nomination. If the candidate wins this primary election, he or she moves into the general elections in which their party affiliation is indicated on the ballot.
In contrast, a nonpartisan election model was created in such a way to reduce to influence of politics in the judicial selection process. In this model, only the name of the candidate is on the ballot without any party affiliation listed.
The last type of judicial appointment model is known as merit selection. Mirroring the myriad of ways in which states choose to appoint judges, the merit system has many variations across the states. There are common characteristics that tie together the different variations, namely; a commission will screen potential applicants and then select those whom the commission deems worthy to fill a judicial vacancy then some elected official, typically the governor, will appoint one of the candidates chosen by the commission. Most of the nominating commissions consist of lawyers and non-lawyers nominated by the governor or other elected officials. As mentioned earlier, there are some differences state by state, some selection commissions have a judge who serves the chair while some states require the selection committees to be bipartisan, requiring that a specified number of representatives of each political party must sit on the commission. This system also includes a retention election in which the public is able to vote to either maintain a judge on the bench or remove the judge, creating a vacancy that the merit selection system will fill.
At the federal level, the process for judicial appointments is much more standardized. Almost all judges at the federal level, including district, court of appeals, and Supreme Court justices are appointed to office by the President of the United States, with the approval of the U.S. Senate. Both the Department of Justice and the Senate Judiciary Committee evaluate the prospective judges’ abilities and qualifications (Federal Judicial Center).
While some of these methods try to find the most capable candidate, each falls short. The federal and most of the state systems allow politics to play a role in the selection of judges, which allows for selective appointments per political leanings at the federal and state level. Along with this, each election style model brings in the threat of economic and political influence through the base necessity of fundraising to run a successful campaign. All of these concerns lead to a degradation of judicial independence.
Don’t just take my word for it, there is a large body of work concerning the way in which campaign contributions affects judicial rulings. The report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions details many ways in which judicial selection process currently in use hamper the independence of judges. The vast majority of judges, 80 percent, and close to 90 percent of voters “believe that by means of campaign contributions, interest groups are trying to use the courts to shape policy” along with 76% of voters and 46% of all judges who believe that “campaign contributions have at least some influence on judges’ decisions.” Through empirical research this perception is found to be true; there exists “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matter.” Additionally, the more contributions that business interests give to justices, “the more likely they are to vote for business litigants appearing before them in court.” What this culminates to is “that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.” Along with this tie to business, “[A] review of more than 4,600 rulings showed that in states where election spending tops $3 million, judges begin to side more often with prosecutors.”
An electoral system for judges makes them inherently political beings, facing the same pressures as other elected officials: “Judges in our criminal justice system are especially vulnerable to election pressure, as grisly TV ads routinely accuse them of being soft on crime.” This effect is elaborated by Tommy Nail, a presiding judge in Birmingham, Alabama’s criminal court, who stated, “It has to have some impact, especially in high-profile cases.” Continuing, Tommy Nail said, “Let’s face it, we’re human beings.” As a result many judges begin to issue rulings that combat these attacks so as to bolster their ability to be reelected: “In Tennessee this summer, the justices ran ads boasting that they had upheld nearly 90 percent of death sentences” while another study “showed that during election years, Alabama judges are more likely to impose the death penalty over a jury’s wishes.” Supreme Court Justice Sonia Sotomayor wrote about this issue stating, “The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system.” Justice Sotomayor continued, “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” Lastly, the contributions themselves are also in many times pressuring as many contributors eventually appear before the judge.
There is also a new challenge that judges face in functioning independently; the threat of impeachment. Judges have been threatened with impeachment over rulings concerning the invalidations “on bans on gay marriage and delaying executions” along with “a call to impeach a U.S. Supreme Court justice if the Affordable Care Act is struck down…” The use of the threat of impeachment goes further than just political influence through the election of judges as it affects those who are appointed. This perversion of a tool to remove ineffective and treasonous judges for petty political reasons further adds pressure to fall in line with the views of political actors. As a result of the legislature’s power over judges in this capacity, there is not a problem with the way in which judges are picked, but also the way in which they can be removed.
The findings from the above reports and studies are worrisome as over “90 percent of the United States’ judicial business is handled by state courts, and 89 percent of all state court judges face the voters in some type of election.” This means that all of these influencing factors can apply to over 80% of all judicial proceedings in the United States, allowing not the judges, but external actors to unduly influence the outcome of a hearing. This further enshrines the need for reform in the selection process of judges as the current system does not hold judicial independence in high regard in practice while it may claim to in theory.
We are a nation based on the idea of a fair, independent judiciary and preserving this idea is fundamental to the American legal system. However, while we have a nation that is historically based on this idea of judicial independence, there is also another reason for its high value. The judiciary provides a key function to a democratic nation: “to assist in delivering justice.” The Hon. Lawrence Piersol explains that “[T]he day-to-day role of the judiciary is to apply the law to factual situations and provide a just resolution for the parties as well as for society.” When coming to the legal system, citizens of a nation should expect to be provided with an even playing field where both parties are able to present their side of the issues at hand. If this is not done, the system is inherently broken, as the playing field is now skewed, creating inequality. As a result of this, tyranny is able to prosper as the avenue for direct challenges has been contaminated.
To address this problem, there is a need for fundamental reform in the way in which judges in the United States are chosen. All of the current systems, for the state and federal judiciary, have large disadvantages through allowing for undue economic and/or political interests to rear their head. To fulfill Alexander Hamilton’s desire for a free and independent judiciary, it may be necessary to look to other nations to find an effective way in which to appoint judges. The French system of judge appointments offers a way in which to ensure the most qualified judges are chosen in an apolitical environment.
The French system substantially differs from the American system wherein the there is emphasis “put on judicial education before starting judicial service, and recruitment is uniform throughout the country.” The beginning of the process to become a judge is through a competitive examination to attend Ecole Nationale de la Magistrature, the National School for the Judiciary (ENM). The Ministry of Justice organizes these exams and creates three categories of exams depending on the candidates’ age, education, and experience. The test consists of an anonymous written section including a “general education paper” on social, economic, political issues in France, papers in procedure or practice in civil and criminal law, “questions aimed at evaluating the candidate’s knowledge of the State and the justice system, public liberties, and public law.” Following the anonymous written section, the candidates must pass oral exams which includes an interview with the examining board which consists of “a judge of the Cour de Cassation (France’s Supreme Court for civil and criminal matters) who acts as the chair, and other members of the judiciary.” This interview consists of topics such as: “European and private international law, social and commercial law, a foreign language.”
When the candidates enter the school, they are generally are beginning a civil service career that they will stay in for the rest of their lives. When admitted to the ENM, the students begin a “31-month course of study in both theory and practice.” The education consists of the disciplines of “law, history, sociology, psychology, psychiatry, forensic science, pathology, and accounting” along with practical experience through internships in “attorneys’ offices, police investigative services, prisons, and French and foreign courts.”
Following their education, there is an examination to rank the students by order of merit. The Ministry of Justice, then, “decides how many positions must be filled based upon the courts’ workload and budgetary concerns” for the year. The students then are able to choose their posting, but attaining their first choice is dependent upon their performance on the final examination. Trainees with poorer performances will likely not get their dream assignment, while the most talented and hardest working trainees go to more crucial posts. After being assigned to a post, the graduates “spend several months preparing for it before joining the court they have been appointed to.” There also exists an avenue for those who are “at least 35 years old and have a professional career that makes them particularly suitable to become a judge or prosecutor” to enter the judiciary directly. These individuals are “reviewed by a Commission chaired the First President” of France’s Supreme Court for civil and criminal matters.
This process ensures that the individuals that become judges are highly trained, as well as free from economic and political pressure from external actors. This process allows for a completely independent judiciary that is able to sustain itself with a gradual and continual influx of new judges, rather than relying on the political process to continue to staff its openings (The U.S. Federal “bench” currently has 126 unfilled seats). This closes any avenue for political pressure that could sway judges’ rulings as a result of an unpopular ruling. Economic pressures are also cut off as the judges do not need to fundraise in order to run as political candidates to maintain their positions.
This process also better prepares judges to be judges. Judicial candidates receive theoretical and practical experience specifically aimed at preparing them for the bench, allowing the system to continue to produce high-quality fillings for openings in the system. This system also allows the judiciary to tailor the amount of judges needed each year, so as to help manage the workload of established judges as much as possible.
The value of an independent judiciary is one that cannot be overstated. For a functional state, the judiciary must be able to act without the undue influence of the elites. An independent judiciary allows for the court system to function in an equitable way, which best serves the longevity of the nation along with the judiciary. To achieve this, it is necessary to fundamentally reform the way in which judges are appointed in the United States as the current method is entrenched in the mire of politics and campaign contributions. The way to most effectively come about with effective, lasting, and productive change is to overhaul the system completely and move towards a model more similar to the French system. This system ensures a sufficient number qualified, trained, candidates are able to find positions in the judiciary without any threat of external influence. To fulfill the need for an independent judiciary, while it pains me to give any credit to the French, it is time to take the lead from our oldest ally and tailor our system in their image.