Why can't Americans decide how to select their judges?
More than two hundred years after the founding of our republic, the subject of judicial selection at both the federal and state levels remains the topic of vigorous debate. At the federal level, accusations fly between the White House and Capitol Hill that presidential nominations of judicial candidates are ideology driven and that battles in confirmation hearings in the Senate are politically motivated. In the states, a crazy-quilt pattern of methods for selecting judges exists, ranging from appointment of judges to life terms in office to partisan elections requiring judges to win a popular vote as often as every four years. In those states where judges stand for election, spending on judicial campaigns by the candidates, political parties, and special interest groups has reached unprecedented levels. And a Supreme Court ruling this past summer that lifted restrictions on speech by judicial candidates is likely to make state judicial campaigns even more politicized.
This article is intended to help educators and students explore the history behind current judicial selection controversies and to make sense of the complex landscape of American judicial selection. It also highlights how judicial selection debates can affect fundamental attributes of our judiciary--its independence, its accountability, and even its impartiality.
Much of the controversy over judicial selection arises from a historical uncertainty over what role we expect our judges to play in our system of democratic government. There are a number of questions that are central to this debate: What are the attributes of the ideal American judge? To what extent do we value judicial independence, and from whom is this independence defined? To what extent should we insist on judicial accountability, and to whom should judges be accountable? What are the best mechanisms for promoting either judicial independence or accountability? Do we think of our judges as interpreters or makers of law? What value do we place on judges' potential counter-majoritarian role, which allows them to protect the rights of the individual or the minority against the will of the majority? All of these questions have informed the history of debate over judicial selection and, having never been definitively resolved, continue to shape arguments on the proper method of selecting our judges.
History of Judicial Selection
There have been some great debates over judicial selection in our nation's history. The first wave of debates was about the provisions for the federal judiciary in the U.S. Constitution. The second arose in the early to mid-nineteenth century and focused on state constitutional conventions, which--in the wake of "Jacksonian democracy" and other concerns--established the popular election of judges in many of the states. The third wave, a product of Progressive Era reforms in the early twentieth century, proposed a scheme of "merit selection" of state judges through nominating commissions to mitigate what was perceived as the corrupting influence of partisan politics in contested judicial elections.
In the midst of debates surrounding ratification of the U.S. Constitution in the late 1780s, Alexander Hamilton published a series of Federalist papers supporting constitutional provisions for the appointment and tenure of the federal judiciary, including the following:
* Article II's grant to the U.S. President of the power to nominate judges of the Supreme Court "with the advice and consent of the Senate" and
* Article III's provisions for the federal judiciary, including life tenure of judges during good behavior, a guarantee against the diminution of judges' salaries while they hold office, and the fight of Congress to "ordain and establish" federal courts of inferior jurisdiction to the …