The Problem

Everyone always talks about the importance of elections for the President, senators, and representatives. It makes sense – they’re big players in the executive and legislative branches, after all. But what about the judicial branch? Judges make incredibly important decisions that affect all of our lives, and they often hold their positions for much longer than other government officials. So, how do people get these powerful jobs? 

The Answer

States make their own rules for how they fill empty judicial positions. For example, state judges might be voted on by citizens or appointed by state officials. Meanwhile, federal judges never run for office but are instead nominated and then confirmed to their position. The idea is that by cutting out the campaign process, judges will be loyal to the law rather than politics. However, politics are still inherent in the appointment process and judges’ subsequent rulings. 

Definition: Judge Appointments

Federal judges and Supreme Court justices are nominated by the President and confirmed by a trial in the Senate. State judge appointments vary wildly, but many states use governor appointments, merit selections by committee, partisan elections, or nonpartisan elections to fill position vacancies. 

How It Works 

The federal appointment process is fairly complicated. When there is a position vacancy, the executive branch puts together a list of potential candidates. The President receives input from the senators of the state with the vacancy, the Department of Justice, the FBI, other senators, the American Bar Association, and other agencies. This investigative period scrutinizes the professional and personal lives of potential nominees. Next, the Senate Judiciary Committee reviews the candidates and formally confirms the nomination of one individual. Once they have been nominated, the entire Senate votes on the appointment. If the majority votes yes, that individual can officially take their seat.  

While the Constitution lays out precise requirements for serving as a Senator, a Representative, and the President, it doesn’t mention any guidelines for selecting judges. Article III only states that the ideal justice is of good moral character. However, federal justices have historically been selected based on some key criteria. For one, they must have extensive law and government experience. A degree from an elite university is more common than not, especially for more powerful judicial seats like the Supreme Court. Also, nominees typically have a record that aligns with the political ideology of the President, particularly on contentious issues. Lastly, in recent years there has been an increased push to consider gender and racial diversity in judicial appointments given that the vast majority of sitting judges are male and an even greater number are white. 

State court nominations lack the consistency of federal ones since individual states decide on their own how judges are selected. Four of the most popular selection methods are appointment, merit selection by committee, partisan elections, and nonpartisan elections. Nomination by appointment is the most similar to the federal selection process. Usually, the state governor makes the appointment based on recommendations from the state judicial council. Meanwhile, merit selections are similar to the federal process if it was just the investigative period followed by a committee vote. A committee of lawyers reviews potential applicants and makes a selection based on similar criteria as federal judge nominees like experience, professional reputation, and diversity. Partisan and nonpartisan elections are different from the federal process since they allow citizens to directly select judges. The only difference between the two elections is that the ballot lists a judge’s political party for partisan elections and omits it for nonpartisan elections. 

So What

While state judges may serve only for a specified term, federal judges serve for life or until they choose to step down. Processes for impeachment and removal exist, though this rarely ever happens. Thus, federal justices have a longer-lasting influence than elected officials or state judges. Judicial appointments are the lasting legacy of any President, allowing them to influence policy decisions even after leaving office. This makes the nomination choice even more critical.

The judicial branch has the power to check the other branches. If the executive or legislative branches make an unconstitutional law, the court can hold them accountable. Though the court is supposed to be free from politics, that’s seldom the case. Judges, knowingly or not, align themselves with political parties, and they are likely to agree with the party that helped them get their position. If the courts are supposed to be government watchdogs, they need to be able to bite. A court full of justices more focused on party

    Learn More

    1. Rutkas, Dennis Steven. “The Appointment Process for U.S. Circuit and District Court Nominations: An Overview.” Congressional Research Service, Congressional Research Service, 17 June 2016. https://fas.org/sgp/crs/misc/R43762.pdf.
    2. “Judicial Appointments and Judicial Independence.” United States Institute of Peace. January 2009. https://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf.
    3. “Judicial Appointment Tracker.” The Heritage Foundation. 2020. https://www.heritage.org/judicialtracker.

    Think Further

    1. What are some strengths and weaknesses of each of the judicial appointment methods?
    2. Which federal appointment criteria do you think is most important? Why?
    3. Is it possible or even important for the judiciary to be independent of politics? Why or why not? 

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