Life Tenure
The life tenure method of judicial selection is the means for seating Article III judges—judges exercising judicial power vested by Article III of the U.S. Constitution—in the United States’ federal courts. About half of all federal judges (currently 870) are Article III judges: nine on the U.S. Supreme Court, 179 on the courts of appeals, 673 on the district courts, and nine on the U.S. Court of International Trade.1
Article III judges have life tenure. They are first nominated by the president of the United States, and then with the “Advice and Consent” of the U.S. Senate, confirmed pursuant to the “Appointments Clause” in Article II of the U.S. Constitution.2 Envisioned by the framers as a means to insulate the courts from shifts in the public consensus, life tenure is derived from the “good Behaviour” clause in Article III of the Constitution, a concept tracing back to England.3 This system of life tenure for Article III judges has existed, more or less uninterrupted, since the Constitution was ratified in 1788.
Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. Due to the nature of the Senate confirmation process, past nominees have tended to skew more toward the political center as a way to increase the nominee’s chance of receiving a simple majority of the vote.4 From there, unless their actions result in impeachment and conviction (the most recent removal from the bench being G. Thomas Porteous Jr. of Louisiana under charges of bribery and perjury),5 federal judges are free to decide cases without fear of political retribution. An example of this can be seen during Earl Warren’s tenure as chief justice of the U.S. Supreme Court.6 Despite being nominated to the court by President Dwight Eisenhower (himself a moderate conservative), the Warren Court took a decidedly liberal trajectory, overseeing such landmark cases as Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Loving v. Virginia (1967), among others.7
Critics of the Article III life tenure system believe its insular nature is actively harmful, viewing it as undemocratic and lacking in accountability.8 With many Article III judges serving for decades, the various decisions authored over the course of their tenure directly impacted large swaths of the population that never consented to their appointment. Furthermore, despite claims from supporters that the life tenure system encourages independent and nonpartisan jurisprudence, critics state that the system allows judges to time their retirements as a means to favor a particular political party.9 The administration of George W. Bush saw the retirement of two justices from the Supreme Court’s conservative wing, Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, who were succeeded by the like-minded John G. Roberts Jr. and Samuel A. Alito Jr., respectively. During the confirmation of Chief Justice Roberts and Justice Alito, Republicans controlled both chambers of Congress along with the White House. Similarly, Justices David H. Souter and John Paul Stevens, members of the court’s liberal wing, announced their retirements while the Democrats controlled both chambers of Congress during the first year of the Obama administration, being replaced by Sonia M. Sotomayor and Elena Kagan, respectively.10
Contested Partisan Elections
A holdover from the era of Jacksonian democracy, contested partisan elections see judges run openly as members of a political party, culminating in their direct popular election as judges for a term of years akin to statewide office holders and members of the state legislatures. First adopted by Mississippi in 1832, contested partisan elections for selecting judges became so widespread that the concept was included in the constitution of every state admitted into the Union between the years 1846 and 1912.11 While the popularity of contested partisan judicial elections has waned in the past century, 20 states still use contested partisan elections to select at least some of their trial court judges and seven (Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas) select their appellate judges and supreme court justices through contested partisan elections as well.12
Advocates for contested partisan judicial elections argue that judicial decisions do far more than just merely settle disputes; in actuality, they set policy.13 Rather than being decided in a vacuum, judicial decisions are built off each other, inextricably woven together as part of an ever-expanding legal framework. As seen over the course of the past century, changes regarding civil liberties, reproductive rights, and religious freedoms have been secured through precedents established by judicial decisions. Based on the thought that judges are, in fact, policy makers, advocates indicate judicial elections prove to be a sufficient means of allowing constituencies to express their will regarding the makeup and perspective of the bench.14 Contested partisan elections go one step further by having judges openly identify as a member of a particular political party, signaling to voters in easily accessible terms what their overarching political philosophy may be.
Critics of contested partisan judicial elections assert that the very nature of engaging in party politics conflicts with the ideals of a free and independent judiciary.15 Publicly linking a judge (and, more broadly, the court) to a major political party or parties can create a loss of confidence in the judiciary’s ability to remain impartial in its decisions. Judges based in areas that favor one party over the other may be incentivized to author decisions that help their reelection efforts rather than making their rulings on the merits to the best of their ability. And contested partisan elections may impact judicial decisions by the incumbent as the day of election approaches. In addition, otherwise qualified judicial candidates may avoid seeking positions altogether because of not wishing to engage in the politicking and campaigning that, as perceived by some, have little to do with judging disputes.
Contested Nonpartisan Elections
While still elected directly by their constituents, nonpartisan contested elections see judicial candidates run for office strictly as individuals rather than members of or representatives of political parties. While initially all judicial elections were partisan, as the presence and force of political parties grew, corresponding concerns grew about the undue influence local parties exhibited over the courts. Nonpartisan elections were adopted in an attempt to help restore the integrity of the courts while helping break party strangleholds, with Cook County, Illinois, becoming the first to implement the method in 1873.16 As of today, 13 states still rely on contested nonpartisan elections (Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin) to elect their supreme court justices.17
Supporters of nonpartisan elections claim that the system stays true to the principles of popular consent and accountability that led to the first judicial elections.18 Nonpartisan elections still hold judicial candidates accountable to the public; however, candidates would not need to find themselves in deference to a larger, party apparatus. As a result, nonpartisan elections become somewhat of a character study, with voters being encouraged to take the time to learn more about the individuals presented on the ballot as opposed to simply their party affiliation. This, supporters claim, provides a degree of thoughtfulness on the part of the voters that can produce a truly independent bench equipped to address the community’s needs.
Critics of the approach claim that the need for voters to fully familiarize themselves with the candidates can prove to be a double-edged sword.19 They argue that party affiliation serves as a basic shorthand for voters on where the candidate may land on major issues. With executive and legislative races (both federally and in the states) tending to consume the lion’s share of the attention during election years, few voters can invest the time, energy, or resources to fully familiarize themselves with the entire roster of judicial candidates up for election.20 Critics also point to the fact that the realities of campaigning make it nearly impossible to prevent partisan politics (and politics more broadly) from playing a role in judicial elections.
The Ohio Method
What is known as the Ohio method of judicial selection presents a unique hybridization of both contested partisan and contested nonpartisan judicial elections. Used by the state to select judges for its appellate and trial courts, the Ohio method of judicial selection consists of an initial partisan primary election, followed by a nonpartisan general election.21 Ohio first implemented contested partisan judicial elections in 1851, later moving to nonpartisan judicial elections under its 1911 Nonpartisan Judiciary Act. That said, the ensuing year saw a progressive majority at the state’s constitutional convention push through a proposal allowing primary nominations for elected offices. Ever since, Ohio’s judicial elections have consisted of the partisan primary and nonpartisan general.22
Given its nature, the Ohio method shares many of the strengths and weaknesses of both the contested partisan and the contested nonpartisan judicial election methods. Its particular emphasis on the primary is of note though. Unlike a traditional nonpartisan election, the partisan primary allows for a more curated list of judicial candidates. Party voters who participate in their respective primaries can seek to use party affiliation to ensure that the candidates who best typify their values can move forward to the general election. However, voter participation in primary elections tends to skew lower when compared with participation in general elections, with voters in primaries more often consisting of party loyalists rather than casual participants. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains.
The Missouri Plan
Also known as the “Merit Selection Plan,” the “Missouri Nonpartisan Court Plan” is referred to as a merit selection system that sees judicial candidates nominated by a nonpartisan commission who are then presented to the governor (or legislative body) for review and ultimate appointment. Appointed judges then serve for a term of years and are then required to run for retention.23 The system traces back to a voter initiative to implement merit selection passed by the state of Missouri in 1940 and has grown progressively more popular in the states during the latter half of the twentieth century. Today, 33 states along with the District of Columbia use some form of merit selection.24
Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. Merit selection acknowledges and accounts for the thought that knowing what individual character traits and characteristics comprise a qualitatively “good” judicial candidate are not necessarily something within the public sphere of knowledge. In acknowledging this, merit selection posits that rather than leave the selection of judicial candidates up to an ill-informed public, the decision should instead reside with a qualified group of legal professionals. Doing so, proponents claim, ultimately allows for the most qualified candidates to join the judiciary. This also expands the field of candidates to include those dismayed by the idea of engaging in campaigning, who would otherwise be left out by an elective system. Proponents also argue that the apolitical nature of the nominating commission ensures that party politics are effectively eliminated, or at least significantly diminished, from the decision. While major political parties have been shut out of the merit selection system, the public is still allowed and encouraged to participate, voicing their opinions on judges when they are up for retention elections.
Much like arguments against the life tenure system, opponents of merit selection claim that the system is not democratic and does not select candidates fully representative of the population they are serving. A criticism unique to merit selection is that its claim of eliminating party politics from selecting judicial candidates is false. Opponents argue that while neither the Republican nor Democratic state parties may hold much influence within the commission, the commission itself encourages factionalism and the creation of new informal political parties. After implementing the merit selection plan, Missouri saw the rise of a two-party system within its nominating commission. Over the course of 25 years, the commission consistently saw itself divided, with one wing representing small-firm plaintiff’s lawyers and criminal defense attorneys and the other wing representing large-firm civil defense attorneys.25 And for merit systems where the governor selects the individual from names submitted by the commission, partisan politics undoubtedly are at play.
Closing
Nearly 90 years ago, U.S. Supreme Court Justice Louis Brandeis famously wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”26 Judicial selection in the United States is a wonderfully rich example of that maxim.
After 245 years, the United States has not adopted a single unified method with which to select judges. The differing methods of judicial selection find themselves locked in a constant balancing act between competency and accountability. In their attempts to resolve this struggle, each proposed system of judicial selection further highlights their inherent strengths and flaws. Debate will (and should) continue as to the “best” way for a given jurisdiction to select its judiciary. What that “best” way is, of course, subject to that debate. For now, however, it is important to recognize the significant differences in how American judges are selected, and the pros and cons of each, and to continue to think hard about the “best” way to select judges going forward.
Endnotes
1. Authorized Judgeships, Admin. Off. of the U.S. Courts at 8 (of 8), https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited June 6, 2021).
2. The Appointments Clause, more specifically Article II § 2, provides that the president of the United States “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . . Judges of the supreme Court, and all other Officers of the United States.”
3. U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”); see also Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 640 (2005) (noting Professor Raoul Berger “traced the phrase ‘hold their Offices during good Behaviour’ to the [British] Act of Settlement of 1701 (which protected the independence of English judges by granting them tenure ‘as long as they conduct[ed] themselves well, and provided for termination’ only through a formal request by the Crown of the two Houses of Parliament) and to earlier English traditions”) (citing Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L.J. 1475, 1478 (1970)).
4. See generally Kevin Costello, Supreme Court Politics and Life Tenure: A Comparative Inquiry, 71 Hastings L.J. 1053 (2020).
5. H. Rep. 111-427, 111th Cong., 2d Sess. (Mar. 4, 2010) (Impeachment of G. Thomas Porteous, Jr., Judge of the U.S. District Court for the Eastern District of Lousiana), https://www.congress.gov/congressional-report/111th-congress/house-report/427/1.
6. Michael O’Donnell, Commander v. Chief: The Lessons of Eisenhower’s Civil-Rights Struggle with His Chief Justice Earl Warren, The Atl. (2018).
7. Tony A. Freyer, American Liberalism and the Warren Court’s Legacy, in 27 Revs. in Am. Hist. 133 (1999).
8. See Philip D. Oliver, Assessing and Addressing the Problems Caused by Life Tenure on the Supreme Court, 13 J. App. Prac. & Process 11 (2012).
9. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 580 (2005).
10. Although not the focus of the text of this article, non–Article III federal judges are appointed for specified terms of office in a variety of different ways. U.S. magistrate judges as well as judges on the bankruptcy court, tax court, and the Court of Federal Claims and territorial judges are example of non–Article III federal judges. See About Federal Judges, U.S. Cts., https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited June 29, 2021).
11. The Case for Partisan Judicial Elections, Federalist Soc’y (2003), https://fedsoc.org/commentary/publications/the-case-for-partisan-judicial-elections.
12. Am. Judicature Soc’y, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2013).
13. See Kathleen L. Barber, Ohio Judicial Elections—Nonpartisan Premises with Partisan Results, 32 Ohio St. L.J. 763, 763 (1971).
14. David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265, 274–75 (2008).
15. Id. at 278.
16. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009).
17. Judicial Selection in the States, Nat’l Ctr. for State Cts., http://www.judicialselection.us (last visited June 29, 2021); see also Nonpartisan Election of Judges, Ballotpedia, https://ballotpedia.org/Nonpartisan_election_of_judges (last visited June 29, 2021).
18. Gerald C. Wright, Charles Adrian and the Study of Nonpartisan Elections, 61 Pol. Rsch. Q. 13 (2008).
19. Id.
20. See Barber, supra note 13, at 776.
21. Judicial Selection in the States: Ohio, Nat’l Ctr. for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH.
22. See Barber, supra note 13, at 767–70.
23. See Rebekkah Stuteville, Judicial Selection in the State of Missouri: Continuing Controversies,” 2 Mo. Pol’y J. 7 (Summer/Fall 2014), https://www.lindenwood.edu/files/resources/stuteville.pdf (last visited June 29, 2021).
24. Diane M. Johnsen, Building a Bench: A Close Look at State Appellate Courts Constructed by the Respective Methods of Judicial Selection, 53 San Diego L. Rev. 829, 839 (2016).
25. See Richard Watson & Rondal Downing, The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan (John Wiley & Sons., Inc. 1969).
26. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also generally Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Press 2018).