Keith Mack
The selection of judges is a complex process that varies across different legal systems and countries. In the context of common law, the debate surrounding the selection of judges revolves around two competing ideals: judicial independence and accountability. On the one hand, judicial independence advocates for judges to be insulated from undue influence by political institutions, interests, or the general public, thus ensuring impartiality and the consistent application of legal strictures. On the other hand, accountability demands that public officials, including judges, be answerable to someone for their decisions, giving rise to the concept of democratic accountability. In some countries, judges are directly elected by the people or through popular elections, while in others, they are appointed by the executive or a governing body, sometimes with the involvement of a nominating commission. This variation in selection methods highlights the ongoing discussion between the values of independence and democratic accountability in the judiciary.
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What You'll Learn
Judges are appointed or elected
The selection of judges is a complex process that varies across different countries and even within different states. The two main methods of judicial selection are appointment and election, each with its own advantages and disadvantages.
Appointment is a process where judges are chosen by a higher authority, such as the executive or legislative branch of government. In the United States, federal judges are typically appointed by the president and confirmed by the Senate. This method ensures that judges are insulated from political influence and can maintain their independence and impartiality. However, it raises questions about democratic accountability, as appointed judges are not directly answerable to the people.
On the other hand, judicial elections allow citizens to have a direct say in the selection of judges. Countries like Bolivia, Mexico, and Switzerland have implemented popular elections for the selection of judges. Judicial elections can increase the responsiveness of courts to public opinion and enhance democratic accountability. However, they also carry the risk of injecting politics into the judiciary, potentially undermining the independence and impartiality of judges.
In some cases, a combination of appointment and election methods is used. For example, the "assisted appointment" or "Missouri Plan" involves a nominating commission reviewing candidates' qualifications and submitting a list to the governor, who makes the appointment. The appointed judge then undergoes a retention election, where voters decide whether to retain or remove the judge. This method aims to balance the benefits of appointment and election systems.
The debate between judicial independence and accountability is a critical aspect of the appointment versus election discussion. Proponents of judicial independence argue that judges should be shielded from external influences and make decisions based solely on legal principles. On the other hand, advocates of democratic accountability believe that judges should be answerable to the people and reflect the values and preferences of the electorate.
In conclusion, the selection of judges through appointment or election has significant implications for the judiciary's independence, impartiality, and accountability. The ideal method aims to strike a delicate balance between these competing values, ensuring that the judiciary upholds the rule of law while also remaining responsive to the needs and values of the citizens it serves.
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Judicial independence and accountability
The debate over whether judges should be elected or appointed centres on the competing ideals of judicial independence and accountability. Judicial independence refers to the notion that judges should be free from undue influence or interference from other political institutions, interests, or the general public. It is closely related to the concept of the rule of law, which dictates that legal strictures should be applied impartially and without bias, regardless of the identities of those involved in a legal case.
In contrast, accountability in this context refers to the idea that public officials, including judges, should be answerable to someone for their decisions and actions while in office. This could take the form of public accountability, where judges are elected and thus seek approval from voters, or accountability to another political body, such as a governor or legislature.
In a judicial hierarchy, lower court judges are internally accountable to higher courts. However, the broader form of accountability at stake in discussions of judicial elections is democratic accountability—that is, accountability to the citizenry. This form of accountability is particularly pertinent given the issues of legal ambiguity and judicial externalities that frequently arise in legal contexts. Legal ambiguity refers to situations where there is no clear or obvious answer to a legal question due to vague or contradictory laws, while judicial externalities refer to the impact that judicial decisions can have on individuals beyond those directly involved in a case. Given these complexities, citizens may understandably want a say in the selection and evaluation of judges.
However, the potential downside of judicial elections is that they may undermine the independence of the judiciary by injecting politics into a realm where independence and impartiality are crucial. This can occur when judges are forced to campaign and thus feel pressured to conform to the will of voters and campaign contributors. Ultimately, the choice of judicial selection method involves trade-offs between values associated with independence and impartiality on one hand, and democratic accountability on the other.
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![Should Judges be Elected? ; Or, The Experiment of an Elective Judiciary in New York / by D.B. Eaton 1873 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Retention elections
In common-law countries, a person may be appointed or elected to the country's highest court or one of its intermediate courts without any prior judicial experience. Judges are appointed or elected to office; there is no competitive examination. In England, the appointive system is used for all levels of judges, including lay magistrates. Appointments are primarily under the control of a Judicial Appointments Commission. In the United States, the appointive method is used in federal courts and some state courts, but ideological and partisan considerations play a significant role in appointments.
In a retention election or retention referendum, voters are asked if an office holder, typically a judge, should remain in office. The judge is removed from office if a majority of votes are cast against their retention. Retention elections are held periodically, usually at the same time as a general election. A judicial retention vote differs from a regular election in that voters are not asked to choose from a list of candidates. Instead, the voter chooses between re-electing the incumbent judge for another term or voting against their retention. They are usually non-partisan, and the judge's party affiliation, if any, is not listed on the ballot. A judge is deemed to have been retained if ballots cast in favour of retention outnumber those against.
In 1934, judicial retention elections were first used by California's state court system to fill vacancies. These retention elections served as an alternative to elections that were previously contested. After appointment by the governor and confirmation by the Commissioner on Judicial Appointments, an incumbent judge would appear on the ballot without an opponent, and voters would vote for or against. In 1940, the state of Missouri adopted the Missouri Plan, which contained a judicial retention process similar to California's. This plan, also known as the merit system, was proposed by Albert M. Kales, co-founder of the American Judicature Society. Under the Missouri Plan, judges were nominated by a council of lawyers and laypersons. A list of candidates would then go to the governor, who would choose a candidate. It was noted that the Missouri Plan needed a form of public accountability, so it was decided that after an election cycle, the judicial candidate would be subject to periodic, public retention elections.
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Judicial selection methods
There are two primary methods of judicial selection: election and appointment. Some states use only one of these methods, while most opt for a hybrid of elective and appointive positions. Appointment, in this context, can be referred to as "one-person judicial selection", where a chief executive, such as a governor, county executive, or mayor, decides who to appoint to the bench. However, some checks on the chief executive's authority usually exist, such as requiring the candidate to be confirmed by a legislative body.
Appointment systems tend to be adaptations of what is known as "merit selection". Merit selection usually involves a two- or three-step process. In the first step, a nominating commission evaluates candidates for the open position, identifies a prescribed number or range of candidates as "well-qualified", and submits that list of candidates to the chief executive. In the second step, the chief executive chooses the nominee from the shortlist provided by the nominating commission. In the third step, after the judge has served for a particular length of time, they must stand for a "retention election". In a retention election, the judge runs unopposed, and voters are presented with a referendum on the performance of the judge.
Election, in this context, refers to partisan campaigns where voters choose their judges in ordinary elections. Those who favour elections argue that it is a democratic method that gives people a voice in the third branch of government and allows them to choose their own judicial "representatives". Some also believe that election increases diversity on the bench. However, critics argue that judicial elections threaten to undermine the rule of law by injecting politics into the branch of government where independence and impartiality are indispensable.
The debate over whether judges should be elected or appointed hinges on a conflict between two competing ideals: judicial independence and accountability. Judicial independence refers to the idea that judges should be insulated from undue or improper influence by other political institutions, interests, or the general public. Independence is closely related to the concept of the rule of law, which states that legal strictures should be applied in a consistent, impartial, and unbiased manner, regardless of the identity of litigants or judges. On the other hand, accountability demands that public officials answer to someone for their decisions in office. In a judicial hierarchy, lower court judges are internally accountable to higher ones. Another form of accountability at stake in discussions of judicial elections is accountability to the broader citizenry, or
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Qualifications and experience
In common-law countries, the path to judicial office is quite different. Upon completion of formal legal education, a person typically spends a significant amount of time in private law practice or, less commonly, in law teaching or governmental legal service before becoming a judge. Judges are appointed or elected to office; there is no competitive examination.
In England, the appointive system prevails for all levels of judges, including lay magistrates. Appointments are primarily under the control of a Judicial Appointments Commission. In the United States, the appointive method is used in federal courts and in some state courts. However, ideological and partisan considerations play a significant role in appointments to the bench. All appointments to the federal bench and many appointments to the state judiciary are made by the chief executive (president or governor).
State court judge appointments differ from federal judge appointments. States are allowed to determine their own rules for hiring and appointing judges. For example, a state may require a potential judge to reside in the state for a certain amount of time, be a certain age, and have practiced law for a specific amount of time. At the state level, becoming a judge is usually decided in one of three ways: merit selection, election, or appointment. Merit selection means that the judge is designated by a state legislative committee. These decisions are made based on past history and performance. A judge election can be either partisan or non-partisan. This means that the electorate votes, and the state determines if the judge candidate will have their party affiliation linked to them on the ballot.
In common-law countries, a person does not necessarily enter the judiciary at a low level; they may be appointed or elected to the country's highest court or one of its intermediate courts without any prior judicial experience. Even courtroom experience is not a prerequisite for a judgeship in the United States. There is no regular pattern of promotion, and judges are not assured of a long tenure with a pension. In some courts, life tenure is provided, sometimes subject to mandatory retirement at a fixed age. In others, tenure is limited to a stated term of years. At the conclusion of their term, if not mandatorily retired earlier, the judge must be reelected or reappointed to continue.
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Frequently asked questions
Judges in common-law countries may be appointed or elected to office. In the United States, federal judges are appointed by the president, while some state judges are elected.
Appointed judges are selected by a nominating commission or an executive, while elected judges are chosen by the people. Elected judges are subject to democratic accountability, while appointed judges are insulated from voters and are more independent.
Citizens may want a say in the selection of judges due to legal ambiguity and judicial externalities. Elected judges may be more responsive to public opinion.
Appointed judges are insulated from undue influence by other political institutions, interests, and the general public, upholding the ideal of judicial independence. Appointed judges are also more qualified, having been selected by a nominating commission.
