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Selection of Judges

In the United States, judges are either appointed or elected. On the state level, the procedure for appointing state court judges varies from state to state. 

Judges may be appointed by the governor usually requiring confirmation from one or both houses of the state legislature, selected by a joint ballot of the two houses of the state legislature, or elected by the voters of the state in the same way that the governor and legislators are chosen. On the federal level, Justices of the Supreme Court, judges of the courts of appeals and the district courts, and judges of the Court of International Trade, are all appointed under the Constitution by the president of the United States subject to the approval of the Senate by a majority vote. The framers of the Constitution gave both the president and the Senate a role in selecting federal judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary.

Supreme Court justices are usually handpicked by the president, with the help of some of his legal advisers. This is possible because there are only nine of them, and vacancies on the Supreme Court are quite rare. But because there are hundreds of federal judges in lower courts across the country, the president has a less hands-on role in their selection, though he sdll officially appoints them. When there is a vacancy, recommendations for appointments usually come from the governor or a senator iVom the state in which the court is located. If that person is from the same political party as the president, the president usually follows their recommendation.

The Constitution says nothing about the qualifications of federal judges. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Competence and ethics are serious considerations for the Attorney General and Justice Department as they assist the president in screening nominees for federal judgeships. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion 一 and more recently race and sex 一 have been additional factors considered by presidents trying to achieve a balanced court. Since the 1970s, most presidents have pledged to do their best to appoint more African Americans, women, and other groups traditionally underrepresented on the federal bench. Finally, the selection of federal judges is often a very political process.

Presidents almost always appoint members of their own party to the federal courts. During the administrations of Ronald Reagan and George Bush, for example, 553 basically conservative Republican judges were appointed to the lower federal bench. The Clinton years, in contrast, saw the appointment of more moderate judges. President George W. Bush carried on the effort to swing the federal courts further to the right More than 80 percent of federal judges have held some political office prior to thcir appointment to the court. Those who are nominated are typically very accomplished private or government attorneys, judges in state courts, magistrate judges or bankruptcy judges, or law professors.

Most have been involved in politics, which is what usually brings them into consideration for a position on the federal bcnch. More important, political philosophy now plays a major role in the selection of judges. Most presidents want to put people on the court who share their philosophy about government, the law, and the Constitution. Judicial appointments are made for life. A president cannot remove a judge for any reason, and Congress cannot impcach judges because it dislikes their decisions. Thus the appointment of federal judges has increasingly become an arena for conflict between presidents and their political opponents in the Senate. Democratic presidents and senators usually prefer liberal judges who express an activist philosophy. Republican presidents and senators usually prefer conservative judges who express a philosophy of judicial self-restraint. But judicial independence has often frustrated presidents and Congresses. Presidents who have appointed people they thought were liberals or conservatives to the Supreme Court have sometimes been surprised by the decisions of their appointees.

Article H of the U.S. Constitution provides that the president may nominate federal judges, including the Supreme Court justices, but that 呼pointment only occurs with the “advicc and consent” of the Senate. This means after the president makes nominations, the nominations are referred to the Senate Judiciary Committee, chaired by a member of the majority party. Committee members conduct an investigation of the nominee’s qualifications and personal background. The nominee may go through one or more hearings where they are questioned by the committee. The committee then makes its recommendations to the full Senate, which debates whether he or she would adequately fulfill the role of judge, and then votes whether to confirm the nomination.

For what reasons may the Senate reject a judicial nominee? Since 1789,when George Washington made his first Supreme Court appointments, the Senate has rejected 28 out of 139 nominations. Most of these rejections came about because the nominee lacked ability, was inexperienced, or had committed some illegal or immoral act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her judicial philosophy. Supreme Court nominations have always received dose political scrutiny in the Senate. In the past, only if the Senate found some personal disqualification in a nominee’s background would a nominee likely be rejected. But publicity and partisanship over confirmation of Supreme Court nominees have increased markedly in recent years.

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