Law Module 3 Study Guide

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CHAPTER 3 COURT ORGANIZATION (77–120) U.S. court organization is complicated by our federalist form of government. Instead of a single, unified court system ( Great Britain, France ), U.S. has 51 court systems: federal courts + 50 individual state courts . Consequences on American legal system: 1. Congress and state legislatures are free to organize their respective court systems to meet their own needs = differences between federal and state court structure, diversity among individual states. A trial court might be called “district court, “superior court”, or “supreme court” depending on the state. Most states have a single supreme court, but Oklahoma and Texas have 2 courts of last resort: 1 for civil appeals and 1 for criminal appeals. Diversity = difficulty generalizing “typical” state court system. 2. Impacts substantive and procedural law. Each state is free to determine and establish for itself what is forbidden and reasonable punishment for defined crimes = states may have different definitions and penalties for the same criminal act. In civil law, different laws of business and organization incorporation, tax laws, marriage and divorce requirements. 3. Impacts role of precedent in law. Since each state’s substantive law is unique to them, state judges’ interpretations are too. What’s true for substantive law = true for procedural law. U.S. Supreme Court rulings make criminal procedure law more uniform throughout country, but civil procedure rules vary by state. Lawyer trained in one state’s law may need to seek additional training in another state’s substantive and procedural law. Stat es require lawyers (already licensed in their home state) to pass their own bar exams. There’s enough similarities among state court systems to allow for general ization, but each state’s system is unique. THE FEDERAL COURT SYSTEM is characterized by 2 types of courts . 1. Constitutional (“article III”) courts Constitution authorizes Congress to “ordain and establish” courts inferior to the Supreme Court and states that all judges “shall hold their offices during good behavior” = lifetime appointment, subject to removal only through impeachment. Congress can’t reduce constitutional court judges’ salaries “during their continuance in office.” U.S. district courts, U.S. courts of appeal, and U.S. Supreme Court . 2. Legislative courts are also created by Congress, pursuant to one of its other legislative powers. They DON’T have lifetime appointments or protected salaries. Federal judges are appointed by president, subject to confirmation by Senate. Article I empowers Congress to make all laws “for organizing, arming, and disciplining the Militia,” = Congress may establish military tribunals to discipline soldiers. Article IV empowers Congress to make rules and regulations for U.S. territories. 1956 Congress (ultimately determines status of federal courts) changed status of U.S. Customs Court from legislative to constitutional court. CONSTITUTIONAL COURTS may be classified as courts of general or specialized jurisdiction. Constitution’s Article III establishes federal jurisdiction over certain subjects and parties to a case. Federal judicial power extends “to all cases affecting ambassadors, other public ministers and consuls” and “to controversies between 2+ states.” If a foreign ambassador is a party to a case, federal courts have jurisdiction regardless of case’s subject matter. Similarly, Article III gives federal courts jurisdiction over “cases of admiralty and maritime jurisdiction.” If case subject is admiralty or maritime, federal courts have jurisdiction regardless of who the parties are. Article III also states, “Judicial power shall extend to all cases, in law and equity, arising under this constitution, U.S. laws, and treaties made under their Authority.” This means if a case raises a federal question (interpretation of Constitution), a federal statute, or a U.S. treaty— federal courts may hear the case. It is a constitutional co urt of general jurisdiction that hears these kinds of cases. Under its delegated powers, congress may make uniform laws on subject of bankruptcies, lay and collect taxes, impose duties on goods coming from foreign countries into U.S. Because of the specialized subject matter of some areas of the law, Congress has created specialized courts with jurisdiction limited to specialized subject matter; these are the

constitutional courts of specialized jurisdiction. As most readers will be more familiar with the courts of general jurisdiction, we will begin our discussion of constitutional courts with them. The federal courts of general jurisdiction are organized into three tiers, or levels. The first tier consists of the U.S. district courts. When Congress first created the lower federal courts in 1789, it merely created one for each state, or 13 federal district courts. As the nation grew, it became apparent that some states needed more than one federal court, so Congress created new ones while maintaining the tradition that district courts should not cross state lines.13 Today there are 89 federal district courts in the 50 states and one each in the District of Columbia, Guam, the Virgin Islands, the Northern Mariana Islands, and Puerto Rico for a total of 94 federal district courts. States that have more than one federal district court use geographical designations to distinguish among them. For example, a court may be named the U.S. District Court for Eastern Kentucky to distinguish it from the U.S. District Court for Western Kentucky. The number of federal judges assigned to each federal district varies. The U.S. District Court for Northern New York has five judgeships assigned to it, while the Southern District of New York has 28 judgeships authorized. It is common for each major city within the federal district to have at least one judge assigned to it. Currently, Congress has authorized 667 regular and ten temporary federal district court judges in the United States.14 Partisan wrangling in recent years has delayed the nomination of federal judges at all levels, but it appears now that some progress is being made. In mid-2010 there were as many as 100 vacancies in federal judgeships but in late June 2015 the number of vacancies in all constitutional courts was down to 62.15 In addition to active federal judges there are retired judges, called senior judges, who hear cases on a part-time basis. Finally, there are magistrate judges who issue search and arrest warrants and handle arraignments, preliminary hearings, the civil consent docket, and misdemeanors for the federal courts. The U.S. district courts, the main trial courts for the United States, have both criminal and civil jurisdiction. When our Constitution came into existence the states already had fully functioning state court systems, and opponents of the Constitution feared that the newly created federal courts would supplant state courts. This concern was alleviated by limiting the judicial power of the federal courts so that most legal controversies would continue to be settled by state courts. Table 3.1 illustrates the caseload of federal courts in two recent years. U.S. district courts function like other trial courts in the country. A single judge presides, and a jury hears the evidence. Federal courts have their own unique rules of evidence, but evidence is submitted and a verdict is reached in the same manner as in state trial courts. Federal courts are no better or worse than state courts in many ways; they are just different because of the different jurisdiction, organization, and procedures. Nor are state courts necessarily inferior to federal courts. Unless a state case raises a federal question or otherwise falls within the jurisdiction of the federal courts, the decisions of state courts are not reviewable by federal courts. Indeed, federal judges are required to respect the interpretations of state laws by state courts if there is not a federal question raised. The second tier of federal courts with general appellate jurisdiction consists of the U.S. courts of appeals. There are currently 13 permanent U.S. courts of appeals. Eleven of the courts of appeals are designated by number. For example, the U.S. Court of Appeals for the Fifth Circuit includes Texas, Louisiana, and Mississippi, and any appeal from one of the nine U.S. district courts located in one of those states is heard by it. The twelfth court of appeals, the U.S. Court of Appeals for the District of Columbia, mainly hears appeals from District of Columbia government and various departments assigned by Congress. The thirteenth court of appeals is the U.S. Court of Appeals for the Federal Circuit, which hears

appeals from several Article III courts and a few commissions and agencies. Because U.S. courts of appeals hear only cases on appeal from U.S. district courts or federal regulatory agencies, they naturally have the same substantive jurisdiction. In the year ending December 31, 2014, a total of 53,799 cases were filed in the federal courts of appeal.16 As of 2014, the number of appeals court judges totaled 179, with the number of judges assigned to individual circuits varying from six for the First Circuit to 29 for the Ninth Circuit.17 Normally, appeals are heard by groups of three judges, called panels. When an appeal reaches the court, three judges are assigned to hear it, and the decision of a majority decides the case. Occasionally, the court of appeals will decide to hear a case en banc, which simply means that all the judges assigned to that circuit will hear the case.18 In a majority of federal cases, the court of appeals is the last stop. For a variety of reasons, including time, money, and the unlikely chance of Supreme Court review, the parties will abandon their fight, resulting in the decision of the court of appeals being the final one. The third and highest tier is, of course, the U.S. Supreme Court, consisting of the Chief Justice of the United States and eight associate justices. Unlike the other federal courts discussed in this chapter, the Supreme Court was created by the Constitution. However, the Constitution is silent about the number of justices and other aspects of the Court’s organization. For example, the first Supreme Court had only six members, and immediately following the Civil War it had ten members. In 1869, Congress set the number at nine, where it remains today. President Franklin D. Roosevelt’s famous court packing attempt in 1937 has been the only serious attempt to alter the Court’s membership since 1869. Roosevelt tried to expand the number of justices to as many as 15, but the attempt failed. It appears that the number will remain at nine for some time to come. As previously noted, Congress has created some constitutional courts that have specialized jurisdiction. Among these are the Court of International Trade and the U.S. Court of Appeals for the Federal Circuit. The Court of International Trade was created by Congress in 1980 to be the successor of the old U.S. Customs Court. Its jurisdiction covers disputes over goods imported into and exported out of the United States. Such disputes include controversies over the admissibility of goods and the duties owed on them.19 A second specialized constitutional court is the U.S. Court of Appeals for the Federal Circuit, created in 1982, from a merger of the U.S. Court of Claims and the U.S. Court of Customs and Patent Appeals. Table 3.2 lists the lower federal courts and administrative agencies over which the Court of Appeals for the Federal Circuit has appellate jurisdiction. On average, 55 percent of the court’s caseload is administrative jurisdiction while 31 percent are intellectual property cases and 11 percent are for money damages against the U.S. government.20 Other courts of questionable constitutional status are the Alien Terrorist Removal Court, the Foreign Intelligence Surveillance Court (FISC), and the Foreign Surveillance Court of Review. The Alien Terrorist Removal Court, which has “jurisdiction to conduct all removal proceedings”21 of aliens in the United States, is a good example because its judges are assigned by the Chief Justice of the United States from the judicial districts but serve fixed, staggered terms of office on the court.22 Similarly, the FISC has judges chosen from among the ranks of the federal courts and has “jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States.”23 In the aftermath of the World Trade Center and Pentagon bombings, Congress increased the size of the FISC from 7 to 11 members.24 Since its creation in 1978, the FISC had never turned down a request from the Justice Department for a wiretap application. However, in August 2002 the FISC refused to grant the Attorney General John Ashcroft’s request for wiretaps under the USA Patriot Act. This prompted an appeal to the Foreign

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Intelligence Surveillance Court of Review, the first in that court’s 25-year history. 25 The FISC also received some notoriety when one of its members openly broke with the George W. Bush administration over its eavesdropping program.26 It should be apparent by now that the federal court system is a hodgepodge of courts created by Congress in a piecemeal fashion to deal with cases arising under federal jurisdiction. As two noted experts on the federal court system have observed, “the distinction between a constitutional and a legislative court is of the type that would have delighted those meticulous medieval scholastics who argued about how many angels would fit on the head of a pin.”27 With that caveat in mind, we now turn our attention to the legislative, or Article I, courts. LEGISLATIVE COURTS As discussed earlier , Article I courts are created by Congress to implement one of its enumerated powers. Although confusion exists about the exact status of some federal courts, two major distinctions generally differentiate legislative courts from constitutional courts. First, judges of legislative courts do not have lifetime appointments but instead serve fixed terms of office. The length of the term designated by Congress is often a long one in order to ensure judicial independence, but it is a fixed term nonetheless. The second distinction is that a legislative court judge’s salary is not protected, as in the case of constitutional court judges. The Constitution stipulates that the compensation of Article III judges “shall not be diminished during their Continuance in Office.”28 Congress has occasionally tried to clarify the status of individual federal courts by designating whether they are to be legislative or constitutional, but, as we have seen, it has not been entirely successful. Three courts that bridge the legislative-constitutional court gap are the U.S. District Courts in three American territories: Guam, the Virgin Islands, and the Northern Marianas.29 These courts hear the same kinds of cases heard in regular federal district courts, but they also hear cases involving local laws.30 This would be analogous to a single court being authorized to hear cases involving both state and federal law. Congress governs the territories of the United States under Article IV of the Constitution and may make laws for them much the same as a state legislature does for a state. The judges on these courts do not enjoy life tenure but serve ten-year terms.31 Congress made one former territorial court, the U.S. District Court for Puerto Rico, an Article III court, and its judges serve for life during good behavior. Another example of a legislative court is the U.S. Court of Federal Claims (formerly the U.S. Court of Claims). The judges serving on this court are appointed by the president and confirmed by the Senate for 15- year terms of office.32 This court primarily hears money claims against the U.S. government such as disputes over federal contracts and federal takings of private property. 33 The U.S. Tax Court, created by Congress in 1924, is also a legislative court. It consists of 19 judges who serve 15-year terms. Although the U.S. Court of Federal Claims and the regular district courts exercise concurrent jurisdiction over tax cases, the Tax Court is the only court the taxpayer can appeal to before the payment of the disputed tax. In the Claims Court and district courts, the taxpayer must first pay the tax and then try to recover it later. 34 Finally, bankruptcy court judges serve as adjuncts to the district courts. Until 1978, bankruptcy court judges served six-year terms and were appointed by the district court judge. That year Congress lengthened their terms to 14 years and made them presidential appointees. When the Bankruptcy Reform Act of 1978 was declared unconstitutional by the Supreme Court,35 Congress passed new legislation retaining the 14-year term but leaving the selection of bankruptcy judges to the courts of appeals.36 As of September 2012, there were 350 bankruptcy judges.37 There were 911,086 petitions for bankruptcy filed during a 12- month period ending March 31, 2015, a decrease of 12.3 percent from 2014.38 President Ronald Reagan signed the law creating the Court of Veterans’ Appeals in November 1988. In March 1999 its name was changed to the Court of Appeals for Veterans Claims.39 This seven-judge court hears appeals on all veterans’ and survivors’ benefits, including loans and educational benefits, from the Board of Veterans’ Appeals. An appeal from the Court of Appeals for Veterans may be taken to the Court of Appeals for the Federal Circuit.40 The final legislative court is the U.S. Court of Appeals for the Armed

Forces. This court consists of five civilian judges who are appointed for staggered 15-year terms. As its name implies, the Court reviews the decisions of courts martial. Its caseload consists mainly of cases involving military personnel discharged for bad conduct or sentenced to prison under the Uniform Code of Military Justice. Only about 10 percent of the decisions of the Court of Appeals for the Armed Services are reviewable by the Supreme Court.41 In conclusion, the federal court system is composed of courts created by Congress under either its Article I or Article III powers. The federal courts are not “superior” to state courts; rather, they exist alongside state courts. The vast majority of cases are tried in state courts, and it follows that they will resolve many important cases. Nevertheless, the federal courts remain an alternative forum to which citizens can turn for relief if state courts prove unresponsive. Despite the confusion caused by federalism, a dualcourt system provides additional guarantees that justice will eventually prevail. STATE COURT SYSTEMS As we have noted, there is no “typical” state court system because federalism allows each state to adopt a court system fitted to its individual needs. Consequently, the most that can be done is to describe state courts in general without being too specific about any particular state’s courts. In addition to the traditional specialized forums such as probate and domestic relations courts, many states are employing other innovative approaches to docket overcrowding, such as the creation of specialty courts, especially in criminal cases, often with the corollary goal of diverting offenders, frequently those with special needs such as mental health issues or unique problems, away from the criminal justice system. Drug courts and teen courts have proliferated in the past few years to offer alternatives. Among the newest courts are those aimed at veterans who are first-time, nonviolent offenders and who may be experiencing difficulty readjusting after combat and the courts seek to prevent them from getting a stained criminal record leading to a downward spiral. The following section describes the structure and jurisdiction of courts that are found in some form or fashion in each of the 50 states. COURTS OF LIMITED JURISDICTION All state courts have their jurisdiction limited in some way. The jurisdiction of any court comes from the state constitution or from statutes passed by the state legislature, or both. Some state constitutions spell out the jurisdiction of the courts in great detail, while others leave the details of court jurisdiction to the discretion of the legislature. In either case, courts are dependent on others for the source of their jurisdiction. Similarly, the organization and number of state courts will also be determined by the state constitution or by state statutes. Courts of limited jurisdiction, as their name implies, are created to handle cases of a limited or specialized nature. In this section, we will examine some of the more common courts of limited jurisdiction found in the states. One of the most common courts of limited jurisdiction is the municipal court. Municipal courts are often, although not always, limited to minor offenses or misdemeanors. Municipal courts are often referred to as “traffic courts” because their main function is to hear cases involving traffic violations within the city limits. In 2012, for example, traffic cases represented 54 percent of the caseload of state courts, both criminal and civil cases.42 Municipal courts frequently have jurisdiction over cases involving violations of city ordinances. Cities possess ordinance power; that is, the power to enact laws enforceable within the city limits. Such laws include prohibitions against discharging firearms, burning trash, and letting animals run loose within the city limits. Persons who receive traffic citations or citations for other offenses may have their cases heard in municipal court. The phrase “You can’t fight city hall” must have been coined by someone after an experience in municipal court. Typically, the defendant’s cause is a lost one. That is because it is usually the defendant’s word against the word of the arresting officer, and judges and juries tend to believe the latter. That is also why most people simply pay the fine and save themselves the trouble of going to court even if they believe themselves to be innocent. Those who do choose to fight a ticket often discover that municipal court is not what

they expected. First, attorneys are infrequently used in municipal court because their fees often exceed the fine. The defendant normally opts to “tell it to the judge” in his or her own words without benefit of counsel. A second difference is that there is often no jury. Although some states give the defendant the right to a jury trial, most of the matters that come before a municipal court are relatively trivial, and most defendants prefer a bench trial, in which the judge decides the outcome. A third, and somewhat surprising, difference is that in some cases the judge may not even be a lawyer. Although many municipal court judges are lawyers, some states allow city officials, such as the mayor, to double as municipal court judge, especially in small towns. Finally, although appeals are allowed, like jury trials they do not occur very often. Again, considering the fine involved, the time and trouble associated with an appeal are seldom worth the effort. If the average citizen ever encounters a courtroom situation as a party to a case, however, it is quite likely to be in a municipal court. A second common type of court of limited jurisdiction is the justice of the peace court. JP courts, as they are commonly called, have a variety of functions, not all of which are judicial in nature. Justices of the peace in some states perform marriages, and in some states they serve as coroner in cases in which foul play or accidental death is suspected in someone’s death. Most justices of the peace also have minor administrative duties, such as preparing the court’s yearly budget and hiring court personnel. JP courts usually have both criminal and civil jurisdiction. Their criminal jurisdiction extends to misdemeanor offenses that occur within the limits of their geographic boundaries. Crimes such as petty theft and simple battery are the kinds that are most likely to be tried in JP court. Most states limit the amount of punishment a JP court can impose. For example, a JP court’s criminal jurisdiction may be limited to offenses in which the maximum penalty is six months in the county jail or a $500 fine. In addition to hearing trials, justices of the peace often conduct arraignments for persons accused of more serious crimes. The civil jurisdiction of a JP court is limited to small monetary amounts (e.g., $2000). That is, the amount involved in the lawsuit cannot exceed $2000 if the JP court is to have jurisdiction. This is why JP courts are frequently called small claims courts. Although lawyers are allowed to appear in JP courts in most states, the litigants often just represent themselves and let the judge decide the case without a jury. Popular daytime television shows like The People’s Court and Judge Judy do much to familiarize the general public with the operation of small claims courts. As may be seen, the kinds of cases handled by the typical JP court are more varied than those of a municipal court. However, many states still do not require justices of the peace to be licensed attorneys, a common criticism of the JP system. The JP system is a holdover from an era when people believed that anyone with a little common sense could fairly apply the law in simple cases. Whether that remains true today is debatable. However, justices of the peace, through strong and effective lobbying of state legislatures, have retained their essential functions and character despite repeated attempts to reorganize them out of existence. It appears that the office, though accused of being antiquated, will be with us for some time to come. A third category of courts of limited jurisdiction includes county courts. Like municipal courts, that are limited to exercising their jurisdiction within city limits, county courts’ jurisdiction is limited to county lines. County courts typically have a greater expanse of jurisdiction than either municipal or JP courts. In criminal cases, for example, county courts may have jurisdiction over offenses with penalties as great as one year in jail and relatively high fines. For civil cases, the amount in controversy may be as high as several thousand dollars. County courts may also function as courts of appeal for lower courts of limited jurisdiction. County courts are frequently courts of record (which means that a transcript is made of the proceedings), whereas municipal and JP courts usually are not. When an appeal is made to a county court from a lower court, it is not an “appeal” in the usual sense of the word. In actuality, as no record exists in the lower court, the county court conducts a trial de novo. A trial de novo is, in effect, an entirely new trial, or a trial from the beginning. Like other judges in courts of limited jurisdiction, the judges of county courts are not required to be licensed attorneys in some states. However, states that have attempted to modernize their judicial systems are requiring judges at all levels to have law degrees. Many states retain the tradition of the county judge as the political leader

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of the county. In such states, county judges are as much administrative officials as judicial ones. A county judge may be responsible for duties such as budget preparation and the county welfare system. County judges probate wills, take responsibility for wards of the county, commit persons to mental institutions, and serve as juvenile court judges in some states. It is at this level that we see a fusion of judicial, executive, and legislative functions that is not so evident at the national level, with its stricter adherence to the system of separation of powers. For this reason, characterizing the office of county judge as a purely judicial one is misleading. COURTS OF GENERAL JURISDICTION A second level of courts in most state judicial systems consists of courts of general jurisdiction. A court of general jurisdiction has the power to hear any case that falls within the general judicial power of the state. That is, a court of general jurisdiction has the authority to render a verdict in any case capable of judicial resolution under the constitution and laws of the state. Cases involving the state’s criminal laws, civil code, or state constitution fall within the judicial power of the state. Laws regulating marriage, corporations, real estate, insurance, and education are just a few of the categories of law within the state’s authority. It will be recalled that the Framers of the Constitution intended that most lawsuits would fall within the judicial power of the states, thus ensuring the continued importance of state courts. THE PLAYMATE AND THE OILMAN The case of former Playboy Playmate, Anna Nicole Smith, and her husband, Houston oil billionaire J. Howard Marshall II, illustrates the importance of state courts in the American legal system. After Marshall’s death in 1995 a twenty-year battle over his estate began. Marshall’s son, E. Pierce Marshall, challenged Smith’s right to any inheritance from his father’s estate. Disputes over the inheritance, stock transfers, and bankruptcy filings, and IRS attempts to recover back taxes have involved hundreds of millions of dollars. Although Pierce died in 2006 and Anna Nicole in 2007, Pierce’s widow and Anna Nicole’s minor daughter have kept the battle raging. The case has even been heard twice by the United States Supreme Court. The case illustrates that monetarily the stakes can be as high in a state court as any court in the land. Courts of general jurisdiction are the major trial courts of the state. As noted in the chapter’s introduction, they may be called superior courts, district courts, circuit courts, or, as in the case of New York, supreme courts.43 For the sake of simplicity, we will refer to this type of court as a district court. Despite the general nature of district courts’ jurisdiction, they too are limited by geography. The state legislature typically divides the state into well-defined and numbered judicial districts that have definite boundaries. These boundaries may coincide with county lines, consist of several counties, or even overlap and disregard county lines. Although most judicial districts will have only a single judge assigned to each, others will be multi-judge districts. Finally, the boundaries of the districts may overlap, in which case two or more judges will exercise concurrent jurisdiction over suits. In these instances, the judges may agree to specialize by allowing one judge to hear exclusively criminal cases while the other hears only civil cases. Such informal, or even formal, specialization is common in large metropolitan areas because of the workload faced by urban courts. Courts of general jurisdiction have both criminal and civil jurisdiction but may, as just noted, specialize out of necessity. Some judges may prefer to handle family law matters, while others concentrate on juvenile cases. The criminal jurisdiction of these courts includes felony offenses. Most states adhere to the definition of a felony as any offense for which the penalty exceeds one year of imprisonment or imprisonment at the state penitentiary as opposed to a county jail. Felony cases, then, include more serious crimes, such as robbery and murder. The civil jurisdiction of district courts has no upper limit as to the amount in controversy. Lawsuits may run into millions or hundreds of millions of dollars. The kinds of cases range from the uncontested divorce case to multi-million-dollar tort or breach of contract cases. This point illustrates again the importance of state courts. When the stakes are high, state courts do not

play second fiddle to federal courts. The operation of trial courts will be examined more closely in Chapter 4. APPELLATE COURTS All states have some kind of appeals mechanism available for litigants who were unsuccessful at the trial-court level. Most states have created an intermediate appeals court between the trial courts and the state’s highest court of appeal. Like the U.S. courts of appeals, the purpose of intermediate appeals courts is to guarantee the litigants the right to at least one appeal while preventing the state’s highest court from having to hear “routine” appeals. These intermediate appellate courts screen out the routine cases so that only the most important cases reach the state’s highest court. However, this screening process does not mean that intermediate appellate courts are totally lacking in discretion in selecting cases. Like all appellate courts, intermediate courts of appeals are limited to deciding questions of laws raised during the trial, decide cases in panels or en banc, and rely on written decisions in making their rulings. Every state has a court of last resort, usually called the state supreme court. As the name implies, a court of last resort is a litigant’s last chance to have his or her case decided favorably once the case has exhausted all other appellate avenues. Most states have a single court of last resort that handles both civil and criminal appeals, but two states, Oklahoma and Texas, have two courts of last resort. For example, the Texas Supreme Court hears only civil cases, while criminal cases are handled by the Texas Court of Criminal Appeals. Many states have chosen to pattern their state’s highest court after the U.S. Supreme Court in the number of justices, procedures, and so forth. But, as we have seen, states have shown considerable independence in creating their court systems, and state supreme courts should not be viewed as merely “little Supreme Courts.” The duties of state supreme courts are identical to those of other appellate courts except that their decisions are final unless an appeal is made to the U.S. Supreme Court. As previously noted, when a state’s highest court makes a ruling involving the interpretation of the state constitution, a state statute, or a precedent in an earlier state case, that ruling is final. The exception is when the case raises a federal question; such a matter may be taken to the U.S. Supreme Court. Another duty of state supreme courts includes ruling on opinions of the state’s attorney general. Some states permit the attorney general to make preliminary interpretations of state laws that are binding unless overturned by a state court. Finally, state supreme court justices, especially the chief justice, are often given additional duties by the state. For example, the state’s chief justice is usually given the task of presiding over impeachment trials. In addition, other justices may have to serve on various state boards or commissions dealing with the judiciary. A common practice is to have several supreme court justices serve on the state’s judicial conduct board. A MAN AND A WOMAN Some states permit the state’s attorney general to issue opinions that have the force of law until otherwise overruled by a court. The El Paso, Texas county clerk had quite a problem one day when two persons, both clearly women, applied for a marriage license. Here was the clerk’s dilemma: Texas law does not permit same-sex marriages but it also says that a person’s gender is whatever is indicated on his or her birth certificate. One of the women had been born a man but had undergone a sex-change operation and produced a birth certificate so indicating. Because the county clerk was unsure whether to issue the license, she requested the El Paso county attorney to seek an opinion from the Texas attorney general. In mid-2010, the Texas Attorney General’s Office announced it would not make a ruling on the case. A federal court’s decision earlier in the year that the California ban on same-sex marriages is unconstitutional undoubtedly encouraged the attorney general to take a wait-and-see attitude pending review by the U.S. Supreme Court. The issue became moot once the U.S. Supreme Court ruled in Obergefell v. Hodges, 576 U.S. ______ (2015) that states may not refuse to issue licenses to same-sex couples.

JUDICIAL SELECTION Once when New York Yankee manager Casey Stengel was reminiscing about his own career as a major league ballplayer, Mickey Mantle expressed surprise that Stengel had once been a major leaguer. Stengel reportedly replied, “Do you think I was born 60 years old and manager of the New York Yankees?” Although this story may be apocryphal, it does serve to remind us that judges are not born judges at any age. The selection of judges at both the state and federal level is a complex and political process. The selection method as well as the criteria for selection will have much to do with the kinds of persons chosen for the bench. The selection process is not only political; it is also highly partisan and heavily influenced by the organized bar. In this section we will examine in detail the selection of federal judges of the three major constitutional courts and then describe the process used to select judges in the states. SELECTION OF FEDERAL JUDGES The selection of federal judges is a deceptively simple process. The Constitution authorizes the president to appoint Supreme Court justices with the consent of the Senate, and Congress has extended the practice by statute to other federal judges. Surprisingly, there are no constitutional or legal qualifications for appointment to the federal bench. Theoretically, the president could appoint anyone reading this book to a federal judgeship as long as the Senate concurs. In reality, of course, there are informal professional and political qualifications to be met, and each president may add to or subtract from the list of qualifications. An example of a professional qualification is that the nominee be a lawyer, preferably a graduate of one of the nation’s prestigious law schools.44 The nominee need not have previous judicial experience, but some presidents prefer that their nominees for U.S. district courts have prior experience on a state court or perhaps as a federal bankruptcy judge. Some presidents require a certain number of years of legal experience, a minimum or maximum age limit, and even a clean bill of health before they will consider a person for nomination. In recent years, every president, both Democrat and Republican, has made a conscious effort to include women and minorities in his appointments, as Table 3.3 illustrates. Although most presidents are reluctant to admit it, they also consider political factors such as gender, race, religion, ethnicity, and even geography when choosing nominees. For simplicity, in Table 3.3 judicial nominees were divided by race and gender. Although individual presidents have done a better job of improving diversity on the federal bench, the overwhelming majority of judicial nominees were still men (81 percent) and white (83 percent) by the end of George W. Bush’s administration. White males constituted over 68 percent of the total nominations while white women made up nearly 15 percent of the nominations. During his first term, nearly 53 percent of President Bill Clinton’s appointees were either nonwhite or female (or both) compared with only 27 percent of President George H.W. Bush’s nominees and less than 15 percent of President Ronald Reagan’s.45 During his eight years in office, President George W. Bush continued diversifying the federal judiciary by appointing minority female candidates at a slightly higher rate (6.52 percent of his nominations) than his predecessors. In terms of minority male candidates, Bush appointed a higher percentage than his immediate Republican predecessors

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but fewer than his Democratic predecessors.46 President Barack Obama has accelerated the gender diversity of the federal courts during his presidency. In the 113th Congress (2013–2014), Obama nominated 152 persons to various federal courts of whom 43.4 percent were women.47 Partisan politics also come into play, as evidenced by the fact that approximately 90 percent of all federal judges belong to the same political party as the president who appointed them. Finally, a president may require some general ideological qualifications of his nominees. For example, it is no secret that President Reagan chose to appoint only persons of conservative ideology to the federal bench.48 More recently, President Bush’s appointees to the lower federal courts have proven to be nearly as conservative as those of his father and Reagan.49 The extent to which a president weighs professional competence, past judicial experience, age, ideology, and partisanship will vary with each president. A president normally determines the general criteria for his nominees and then allows the other significant actors in the process––members of the White House staff, the attorney general or deputy attorney general, and the relevant U.S. senators––to recruit candidates who conform to his standards. Just how the process of choosing particular individuals occurs will be discussed later in this chapter. At this point, it is preferable to have a general overview of the entire selection process. Once a candidate for the federal bench has been identified, the Federal Bureau of Investigation (FBI) is called upon to do a background check. Formerly, FBI background investigations were conducted only on the nominee actually selected, but since the Nixon administration background checks have been run on all serious contenders.50 The purpose of the background check is to ensure that there is nothing in the candidate’s background that may prove embarrassing to the president or to the senator sponsoring the nominee. It would not do if the president’s nominee turned out to be a spouse abuser or to have a history of drunken driving. Even past and present political and social affiliations are checked out; membership in a racially segregated club, a restrictive covenant in a property deed, or some ill-considered posts on a private social media page may come back to haunt a candidate for the federal bench. Even thorough investigations can fall short of the mark, as evidenced by President Reagan’s withdrawal of the nomination of Douglas H. Ginsburg to the Supreme Court. Ginsburg’s admission that he used illegal drugs in his younger days embarrassed Reagan, who was known for his anti-drug stance. The next part of the process is the informal rating of the nominee’s qualifications by the American Bar Association (ABA) Standing Committee on the Federal Judiciary. The ABA created the Standing Committee on the Federal Judiciary to serve as a kind of watchdog over the federal judiciary. The Committee is composed of 15 prominent attorneys representing each of the federal circuits. Their job is to review the qualifications of the president’s nominee according to “integrity, professional competence and judicial temperament.”51 Once evaluated, the nominee is rated “well-qualified,” “qualified,” or “not qualified.” Although every president would like nominees to receive the highest rating, the weight given to the ABA rating will depend on the individual president. In general, Republican presidents have placed greater emphasis on ABA ratings. During the Eisenhower administration, for example, the president refused to appoint anyone rated “not qualified.” This, in effect, gave the ABA a virtual veto over nominations to the federal bench. President Richard Nixon followed a similar policy early in his administration but later began the practice of submitting his nominees’ names to the ABA only after he had announced them publicly. 52 Neither President Reagan nor President George H.W. Bush nominated persons rated “not qualified.” By contrast, Democratic Presidents John F. Kennedy, Lyndon B. Johnson, and Clinton nominated persons despite a “not qualified rating.”53 In the past, except as noted in the Nixon administration, the names of nominees were submitted to the Committee in advance for its rating, but in March 2001 President George W. Bush announced that his administration would no longer submit the nominee’s name in advance. The stated reason for the policy change was that President Bush believed it gave a single interest group (the ABA) too much influence in the selection of federal judges. In early 2009, President Obama announced that his administration would return to the practice of submitting names of lower federal court nominees to the ABA before the nominations were made public.54 Now the nomination is ready for confirmation hearings by the Senate

Judiciary Committee. The Judiciary Committee handles judicial nominations in much the same way as it handles regular legislation within its jurisdiction. That is, formal hearings are held on the nomination and testimony is taken. The nominee is “invited” to testify, of course, but it is really a command performance. In general, the committee hearings are fairly routine. If a nominee for district judge who has the blessing of the home state’s senators is being considered, few members of the Judiciary Committee are interested in the nomination. After all, even if the nominee is incompetent, the damage will be confined to a single federal district court in someone else’s home state. As we shall see, however, nominees for the courts of appeals and the Supreme Court are subject to much greater scrutiny. If the nominee, regardless of the court level, is noncontroversial, the witnesses before the Judiciary Committee are usually a parade of supporters who have come to sing the praises of the nominee. On the other hand, a nominee who is controversial because of past judicial decisions, public statements, or political philosophy may come under fire from interest groups. Interest group opposition, especially when the Supreme Court is involved, can be intense. Civil rights groups, women’s groups, labor organizations, and pro-abortion and anti-abortion groups may all wish to testify for or against the nominee. Coalitions of civil rights groups, civil liberties groups, and labor and pro-choice groups successfully defeated President Reagan’s nomination of Robert Bork in 1987. Similar groups came very close to defeating President George H.W. Bush’s nominee, Clarence Thomas, in 1991. Thomas was approved by a 52 to 48 vote in the Senate.55 Ironically, it was members of President George W. Bush’s own Republican Party who derailed the nomination of his White House Counsel Harriet Miers to the Supreme Court in October 2005. President Obama has avoided serious controversy over his Supreme Court nominees with the successful confirmations of Sonia Sotomayor in 2009 and Elena Kagan in 2010. However, partisanship re-emerged in early 2016 following the untimely death of Justice Antonin Scalia when Republican Senate leaders and presidential candidates announced their belief that the appointment of Scalia’s replacement should wait until after the 2016 presidential election. Interest groups may uncover information about the nominee’s background that was overlooked or ignored by the FBI and the ABA. Interest group activity, even if ineffective, serves to remind us of the political nature of the judicial selection process.56 In recent years, there has been growing concern about the role of the Senate Judiciary Committee in the selection process, especially at the Supreme Court level. As mentioned, interest groups opposed to Robert Bork successfully defeated his nomination, although by all accounts he was well qualified to serve on the Supreme Court. Critics allege that Bork was subjected to stricter and harsher scrutiny regarding his views of the Constitution than had previous nominees appearing before the Senate Judiciary Committee. However, one study of 23 Supreme Court nomination hearings indicates that Bork’s experience was not unique.57 The researchers classified questions of the Senate Judiciary Committee members as “character,” “competence,” or “constitutional philosophy” questions. The study discovered that in 15 of the 23 hearings, questions concerning the constitutional views of the nominee exceeded 75 percent of the questions asked and in eight hearings the percentage exceeded 80 percent. The researchers also found that in the three nomination hearings immediately following Bork’s (Anthony Kennedy, David Souter, and Clarence Thomas), the percentage of constitutional philosophy questions exceeded 75 percent of the questions asked.58 Paul A. Freund and Stephen Carter argue in separate articles that nominees to the Court historically have been required to defend their constitutional views before the Senate.59 Despite the highly charged partisan nature of the confirmation process, the fact remains that, with the exception of the Miers nomination, recent presidents have been able to name who they want to the Supreme Court. Finally, after all the testimony has been given and all the witnesses heard, the Judiciary Committee votes to recommend approval or rejection of the nomination to the full Senate. If the nomination is approved by the Committee, approval by the Senate is almost assured. Very little, if any, debate takes place unless the nominee is controversial. A vote is taken, and if it is approved by a simple majority the nominee is confirmed. Upon being sworn in, the president’s nominee is a federal judge for life during good behavior. Although the process of FBI

investigation, ABA scrutiny, Judiciary Committee hearings, and Senate confirmation is the same for the appointment of all federal judges, the process by which the selection is narrowed from a large pool of candidates to a single individual differs according to the level of federal court involved. Selection of district court judges is heavily influenced by state politics and the state’s U.S. senators. Selection of court of appeals and Supreme Court judges tends to be influenced more by the president and national politics. We shall examine the selection process at each level and compare all three. There is an old saying that a federal judge is just a lawyer who knows a president. At the district court level, however, it is more accurate to say that a federal judge is a lawyer who knows a U.S. senator. That is because at the district court level the selection process is heavily influenced by the state’s senators. It will be recalled that the boundaries of U.S. district courts are entirely within the boundaries of a single state. U.S. senators have traditionally felt that the appointment of federal officials within their states should be their prerogative; that is, the president should clear any federal appointment in a state with the senators of the president’s party. This tradition is known as senatorial courtesy. Should a president attempt to nominate someone to the federal bench without the senator’s blessing, the senator in question would merely ask his or her colleagues in the Senate to defeat the nomination. In the past, a senator merely had to state that the president’s nominee was “personally obnoxious” to him or her, and that was sufficient justification. Today, senators are expected to provide more substantive grounds for invoking senatorial courtesy. 60 Because of senatorial courtesy, the actual selection process works like this. Let us assume that there is a Republican president in the White House. When a vacancy occurs on a U.S. district court, the attorney general will contact the Republican senators in which the federal court lies for input into the selection. If the state has no Republican senators, the attorney general may consult with state Republican officials, party leaders, or Republican members of the House of Representatives. Under these circumstances, the president is freer to choose whomever he pleases for the judgeship. In some cases, the senator may have in mind a specific candidate who generally meets the president’s criteria for nomination. In such a case, if the person is not totally objectionable to the president (and in some cases even if he or she is), the president will nominate the senator’s candidate. Senators often use federal judgeships to reward political supporters in their home states for past political support. Another possibility is that the senator may have several qualified candidates for the position but is reluctant to alienate the others by actively promoting one over the others. In that case, the senator may merely send a list of acceptable candidates to the attorney general and let the president make the final choice. This strategy removes the onus from the senator of offending the persons not selected . A variation of this approach is for the senator to establish his or her own merit selection process. The senator may ask a committee of judges, lawyers, law professors, and the like to screen the applicants and select the person best qualified. This approach also takes the pressure off the senator who does not want to offend his or her supporters. Finally, a senator may choose to stay out of the process by allowing the president to make the choice. The senator would merely retain the option of exercising a veto over the final choice in the event that the president selects a Democrat or someone from a rival faction of the party. This latter strategy keeps the senator from being obligated to the president. Senatorial courtesy has undergone a change in recent years for a number of reasons. In the past, senatorial courtesy dictated that senators of the same party as the president would virtually name federal judges in their states in the manner described above, and it is still true that nominees from states of the president’s party are confirmed more quickly. 61 Recent presidents are more likely to consult both of the state’s senators regardless of political party. One reason for this is that the Senate has been closely divided in recent years. President George W. Bush, for example, had a narrow Republican majority in the Senate through the middle of his second term in office. In that atmosphere, every senator’s vote becomes crucial in winning confirmation. Another reason is that the confirmation process, even at the district court level, has become increasingly controversial. Candidates who in the past would have been easily confirmed are now having their nominations delayed and even defeated. So today the president must find support

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for his judicial candidates wherever he can. Approval of the Chair of the Senate Judiciary Committee, especially if the opposition party controls the Senate, is almost as important as support by the nominee’s home state senator. 62 It seems that consultation of the opposition senators is just good politics. The selection of persons to fill vacancies on the courts of appeals is less sensitive to the pressures of senatorial courtesy than is selection at the district court level, for two reasons. First, the federal circuits consist of several states, unlike district courts that are located entirely within a single state. Because, by tradition, the president is free to nominate anyone from the circuit, no single senator can claim the appointment as a personal prerogative. Custom dictates that court of appeals judgeships be fairly evenly divided among the states within the circuit so that all of the judges do not come from the same state. For example, if a judge from Texas retires from the U.S. Court of Appeals for the Fifth Circuit, the expectation is that another Texan will be named to the bench and that the state’s senators will be consulted. However, the senators from Texas are not in a position to force a particular candidate on the president, as they are at the district court level. If they try to “muscle” the president with the threat of senatorial courtesy, he can merely nominate a candidate from either Louisiana or Mississippi, the two other states in the Fifth Circuit. Still, the president may need the support of the senators from Texas and may therefore allow them considerable influence over the nomination. A second reason for the decreased influence of senatorial courtesy at the court of appeals level is the perception that these positions are more important than district court judgeships. A district court judge’s influence is confined to a single state or part of a state. If a district court judge is lazy, incompetent, or corrupt, the damage is limited to one court. However, the decisions of appeals court judges serve as precedents for every district court in the circuit. Because only a small fraction of federal cases move on to the Supreme Court, the decisions of the courts of appeals are often final. The decisions of a court of appeals may never be reviewed or overturned by the Supreme Court, so the precedents set by them are the law within that circuit. Consequently, more emphasis is placed on the professional competence of candidates for the courts of appeals. For these reasons, politics is not allowed to play as great a role as in the selection of federal district judges. Senatorial courtesy is virtually nonexistent where the nomination of a Supreme Court justice is involved. This does not mean, of course, that a president may totally disregard the Senate when making a nomination. Historically, approximately 20 percent of the presidents’ nominees have been rejected by the Senate, which indicates that its members do not take their obligation to give “advice and consent” lightly. A Supreme Court justice is in a position to influence public policy in America for many years; the nominee must therefore be chosen carefully. Every president knows that the person named may have an impact on constitutional law in the United States long after he has left the White House. Justice John Paul Stevens, appointed by President Gerald Ford in 1975, served until 2010, 34 years after Ford’s presidency ended. For this reason, presidents are keenly aware of the importance of each nomination to the Court. Despite the importance of nominations of the Supreme Court, it does not necessarily follow that politics plays no role in the selection process. Indeed, it is because the stakes are so high that we might guess that politics plays an even greater role in the selection of Supreme Court justices. Generally speaking, nominees are chosen for their ideology, their representational qualities, and their professional competence, in roughly that order of importance. Let us examine all three areas in order to ascertain how each influences the president’s decision to select a particular individual to serve on the Supreme Court. As will be discussed in Chapter 6, the Constitution, like the Bible, is open to a variety of interpretations. This means that two individuals can read the same section of the Constitution and arrive at two totally different interpretations. And because judges, like major league managers, are not born 60-year-old judges, each person who comes to the Supreme Court arrives with his or her “bags packed.” That is, each justice comes to the Court with preconceived ideas about such issues as same-sex marriage, the death penalty, law and order, ownership of guns, and civil liberties. Although it is not uncommon for a justice to change views once on the Court, a majority come with their views set. In making a nomination to the Supreme Court, a

president seeks to nominate a person whose views are similar to his own. Whether a liberal or a conservative, a loose or strict constructionist, pro-abortion or anti-abortion, the president wants a nominee who will decide constitutional issues as he would if he were on the Court. Presidents have had their share of disappointments. Theodore Roosevelt was disappointed with Oliver Wendell Holmes, Jr., and Dwight D. Eisenhower regretted his nomination of Earl Warren as Chief Justice. Consequently, the better informed he is about the political and judicial philosophies of his nominee, the less likely it is that a president will be stuck with a justice whom he does not like. Even more revealing of the political nature of the Supreme Court selection process are the representational qualities that presidents seek in their nominees. Presidents are reluctant to admit that politics influences their choices for the Court, but that is indeed the case. This is because the judiciary is supposed to be “above” politics. In a nation that stresses equality before the law, it is incongruent to admit that political considerations influence the selection process. But just as the nominee’s political philosophy is taken into consideration, so are the nominee’s representational qualities. The Supreme Court is a very important political symbol in our system of government. Because of the significance of the Court’s symbolism, it is important to certain groups in our society that they be represented on the Supreme Court. As a result, there has developed the tradition of reserving certain “seats” on the Supreme Court for representatives of prominent groups. For example, early in our nation’s history, many Catholics believed that as a significant religious minority they were entitled to have at least one Catholic on the Court. Chief Justice Roger B. Taney became the Court’s first Catholic justice, thus creating the “Catholic seat” on the Court. President Woodrow Wilson named the first Jewish justice, Louis Brandeis, in 1916. Interestingly, for the first time in its history, the Supreme Court no longer has a Protestant sitting on the Court. With the confirmations of Justices Sotomayor and Kagan, there are six Catholic and three Jewish members. President Lyndon Johnson made Thurgood Marshall the first African American to sit on the Court; Marshall was succeeded by Clarence Thomas in 1991. President Reagan broke the gender barrier with the nomination of Sandra Day O’Connor to the Court in 1981. President Clinton created a second woman’s seat with the appointment of Ruth Bader Ginsburg in 1993. With President Obama’s nomination of two women to the Court, there is hope that women will someday achieve parity of representation. Some Court watchers believe that another significant barrier was broken with the confirmation of Sotomayor as the nation’s first Latina justice to the Court. Although presidents profess to seek the best-qualified person regardless of race, religion, or gender, the reality of the process is that these political factors cannot be ignored. The influence of representational qualities on a Supreme Court nomination may be illustrated with a few examples. In one situation, a president may wish to use a Supreme Court nomination to reward a group that has helped him politically. When President Johnson nominated Thurgood Marshall, he did so in part to show his appreciation for the support of African American voters in the 1964 election and in anticipation of their continued support in 1968 (although Johnson ultimately did not seek re-election). Another group important to Democratic presidential candidates is Jewish voters. Only two Jewish candidates have been nominated to the Supreme Court by Republican presidents, and one, the nomination of Douglas H. Ginsburg by President Reagan, was unsuccessful. Every other Jewish Supreme Court justice has been nominated by a Democratic president. This is because Jewish voters constitute a consistently loyal part of the Democratic coalition. Therefore, when Jewish justice Abe Fortas resigned from the Court in 1969, President Nixon, a Republican, felt no obligation to nominate a Jewish replacement. As a result, the “Jewish seat” remained vacant until the nomination of Ruth Bader Ginsburg by President Clinton in 1993. However, with the appointments of two additional Jewish justices––Stephen Breyer in 1994 and Elena Kagan in 2010––the discussion of a “Jewish” seat on the Court is moot. A second instance in which the president might use a nomination to the Supreme Court for political purposes is when he is trying to curry the favor of an important political group. In 1968, Nixon had devised his so-called Southern Strategy for winning the presidency. The Southern Strategy called on Republicans to appeal to disgruntled conservative Democrats in the South who were opposed to the liberal policies of the national Democratic

Party. As part of the Southern Strategy, Nixon promised to nominate a southerner to the Supreme Court. Thus, when Justice Fortas resigned, Nixon chose not a Jewish nominee but a southerner, Clement Haynesworth of South Carolina. When the Senate rejected the Haynesworth nomination, Nixon nominated another southerner, G. Harrold Carswell of Florida. After the Senate rejected Carswell, Nixon accused the Senate of prejudice against southerners. Even in defeat Nixon won: he could point out to southern voters that he had twice tried to place one of their own on the High Court but had been thwarted in his attempts by the northern liberal Democrats in the Senate. Finally, a president might nominate a particular person to the Supreme Court as a means of bolstering his support among a key political group. Voting studies indicated that in the election of 1980, President Reagan had not done as well among women voters as among men voters. This was probably in part the result of Reagan’s opposition to the Equal Rights Amendment (ERA). When Justice Potter Stewart announced his resignation in 1981, it gave Reagan an opportunity to mend his fences with an important bloc of voters. Reagan’s nomination of Sandra Day O’Connor helped lay to rest criticisms that he was “anti-women.” Similarly, President Clinton, a favorite among women voters, showed his appreciation for their electoral support by naming a second woman, Ruth Bader Ginsburg, to the Court in 1993, as has President Obama with his two nominations of women. The final area of qualifications to be discussed that presidents consider in their choice of Supreme Court nominees is professional competence. As previously noted, presidents would like their nominees to receive the highest possible ABA approval rating and overwhelming Senate approval. Naturally, the president seeks persons of high intellect, character, and integrity for the Court. The public expects and the Senate demands that Supreme Court justices be of the highest caliber. What, then, does the president seek by way of professional competence? Recent presidents of both parties have valued prior judicial experience on appellate courts over candidates with political experience such as a former senator or governor. Indeed, service on the U.S. Court of Appeals for the District of Columbia has become almost a requirement for appointment to the Supreme Court. Some presidents consider prominence in the legal profession an important qualification for a Supreme Court nomination. Lewis Powell was a former president of the ABA when he was named to the Court by President Nixon. Before becoming Obama’s solicitor general, Kagan was dean of the Harvard Law School. Overall, judicial experience and professional competence, although important, take a back seat to ideological and representational qualifications. That is because there are enough outstanding judges and lawyers in the country to give the president the luxury of basing the choice on nonprofessional criteria. Selection of state judges The selection of judges for state courts varies according to several factors. First, because of federalism, states may vary the selection method according to their individual wishes and needs. Basically, there are three selection methods from which to choose: election, appointment, and merit selection. States may use a combination of selection methods; they may choose, for example, to elect lower court judges and to appoint appellate and supreme court judges. Another factor is the influence of the state bar association. State bars have promoted merit selection in the past because it is believed to increase their influence in the selection of judges. Still another factor is the political environment of the state. Some states look upon judgeships as just another political office, to be controlled by election or patronage. Other “reform” states have tried to remove the judiciary from politics as much as possible. In this section, we will examine each of the three methods of judicial selection used by the states, indicating the strengths and weaknesses of each. One method, used in approximately half of the states, is to elect judges by a popular vote of the people. Candidates for judgeships run on either a partisan or a nonpartisan basis. If the state has partisan elections, the judicial candidate vies for the nomination in the primary, campaigns just as any other candidate would, and wins if he or she receives a majority (or plurality) of the vote. The election method became popular in the states during the period known as Jacksonian Democracy. Jacksonian Democracy held that if it was a good idea to elect some officials to government office it was a good idea to elect all of them, including judges. Judges, after all, make political decisions (e.g., abortion or same-sex marriage), so the people should be able to hold them accountable for those decisions.

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The election of judges would guarantee that judges would not become judicial tyrants. The fact that a judge must periodically face the voters and run on his or her record ensures that the judge will not stray too far from local community standards when applying the law. It also guarantees that judges will not abuse their power as federal judges are often accused of doing. Those who oppose the election method do so for several reasons. First, elections undermine judicial independence. If we are to have a nation of laws, not men, we must allow judges to apply the law as they see it without fear of political reprisals at the next election. Subjecting them to election tempts judges to make rulings that are popular but not necessarily legally or even morally correct. Second, the election method does not guarantee that the most qualified person will be elected to the bench. Studies indicate that elections favor white, male, middle-class, and professional candidates. The possibility of qualified minorities becoming judges is reduced with the election method. A third criticism is that most voters are not qualified to evaluate candidates for judicial office. The average voter is simply not equipped to assess the professional competence or judicial temperament of candidates for the bench.63 Even if there is an incumbent who has a record on which to run, the average voter is unfamiliar with the decisions a judge has made. The exception, of course, is when the judge has made a controversial ruling resulting in a move to unseat the judge at the next election. The voters may never hear of the many good rulings the judge has made but may hear of only the controversial one. Finally, critics of judicial elections argue that the election method demeans the judicial system by forcing candidates for the bench to campaign for office. Candidates must often solicit campaign contributions from the same lawyers who will later come before them in court. It is unreasonable, critics argue, to assume that a judge will be able to treat impartially the lawyer who contributed $5,000 during the previous campaign. Similarly, a judge may be biased against a lawyer who supported the judge’s opponent in the last election. For these reasons, critics argue that election injects politics into the judicial system in ways that undermine the integrity of the process. Regardless of the relative merits of electing judges, a little-known phenomenon occurs in some states that use elections, and that is the practice of appointing persons to fill the unexpired term of retiring or resigning judges. The process works like this. An incumbent judge who is ready to resign or retire announces his intentions a year or so before his term expires. This allows the governor to name a replacement to serve out the rest of the unexpired term. The newly appointed judge now has the advantage of seeking re-election as the incumbent. In most cases, any other lawyer who was considering making a bid for the judgeship will back off for fear of offending the new judge whom he or she may later have to face in court. Because most incumbents are re-elected, challengers are difficult to find and the incumbent usually runs unopposed. The voters, instead of choosing from among several qualified candidates, find that they have little choice but to ratify the governor’s preselected candidate. In Texas, for example, a survey revealed that nearly half of the state-level judges had initially reached the bench by appointment and not by winning an election.64 In such cases, judges are lawyers who know a governor. The second method of judicial selection used in the states is the appointment method. The appointment of state judges often parallels that of federal judges. Candidates are nominated by the governor with the consent of the state senate or perhaps with the consent of both the senate and the house of representatives. Confirmation by one or more chambers of the state legislature prevents the governor from merely appointing his or her friends to office. Its supporters argue that the appointment method allows the governor to choose judges on the basis of their qualifications. As previously noted, the average voter is unqualified to evaluate the qualifications of judges. The governor and his or her advisers, on the other hand, are in a better position to make such evaluations. The governor, with the advice of the state bar association and other judges, is better able to ensure that the most qualified persons are chosen. Another argument is that well-qualified persons are more willing to serve if appointed rather than elected. This argument asserts that the onerous task of running a political campaign for election discourages otherwise qualified applicants from seeking judicial office. A third argument is that the appointment process allows a governor to name well-qualified minority group members to

the bench. Proponents of the appointment method argue that minority representation on the bench influences how other minority members perceive the judicial system. Finally, supporters of the appointment method point to the high caliber of federal judges who were selected by appointment. Opponents of the appointment method make an equally strong case against it. They argue that lifetime appointments encourage arbitrariness in the courts. Judges should be held accountable for their decisions to the people. Second, the appointment process leads to cronyism. The governor is inclined to use judicial appointments to reward friends with public office, regardless of their qualifications; this injects an element of partisan politics into the selection process as well. Finally, while it is true that the quality of federal judges is high, it is not the appointment method that has produced that quality. Federal judgeships pay more and are more prestigious than many state judgeships; hence, the federal bench attracts a higher quality of applicants from the outset.65 The third method of judicial selection is merit selection, often called the Missouri Plan because the state of Missouri pioneered its use. Merit selection is an attempt to combine the best features of the election and appointment methods. One of the key features of merit selection is the presence of a judicial nominating committee. The judicial nominating committee is usually composed of a combination of lawyers, laypersons, and incumbent judges. When a vacancy occurs in a judicial post, it is the job of the judicial nominating committee to serve as a screening committee. Persons wishing to be considered for the judgeship may submit their own credentials or they may be nominated by someone else. The judicial nominating committee screens the applications and reduces the choices to three candidates. The names of the three candidates are then submitted to the governor, who must appoint one of the three candidates to the judgeship. The person appointed then begins his or her tenure on the court. A second key feature of the Missouri Plan is the use of a retention election. After the newly appointed judge has served a probationary period of at least one year, he or she must go before the voters for their approval. The judge has no opponents, however. The voters are simply asked, “Shall Judge X of the state [Supreme Court] court be retained in office?” The voter votes either yes or no. If the voters approve, the judge begins a full term of office. Terms of office for judges under the Missouri Plan are generally long––from 8 to 12 years–– in order to ensure judicial independence. At the end of the term a judge must stand for retention again, with the voters asked the same question. If the voters approve once again, the judge serves another full term. A judge may continue to serve as long as he or she wishes and as long as the people vote to keep the judge in office. If a judge loses the retention election, the position is declared vacant and the judicial nominating committee must begin the process of filling it. Supporters of merit selection are generally enthusiastic about the method. The Missouri Plan, like the appointment method, gives a greater role to those who are most knowledgeable about judicial qualifications. As is the case with the election method, judges are periodically held accountable to the voters; judicial tyranny is thereby discouraged. At the same time, lengthy terms of office offer the judge a certain amount of judicial independence. A judge may make a controversial ruling with less fear that the voters will punish him or her for it at the next election, especially if the ruling is made early in the judge’s term. Supporters argue that merit selection combines the positive features of the election and appointment methods with few, if any, of their drawbacks. Critics of merit selection are not convinced that the method is as effective as its supporters claim. First, they point out that merit selection gives inordinate influence to the organized bar. The lawyer-members of the judicial nominating committee are usually chosen by the state bar, and the judge-members are also lawyers. This means that even if there are nonlawyers on the committee, they are outnumbered by the lawyers. Another problem is that the lay members are at a disadvantage in evaluating judicial qualifications. They may allow the lawyers on the committee to unduly influence them in the screening process. Another criticism is that merit selection does not eliminate politics from judicial selection as its supporters claim. The political struggle shifts from partisan politics to the politics of the state bar. State bars usually have factions that try to control the selection of lawyer-members to the judicial nominating committee. Partisan politics may also enter the picture; a Republican governor who is given the

choice of two Democrats and one Republican by the judicial nominating committee may conclude that the lone Republican is the “best” candidate. Even after a judge has reached the bench, partisan politics may enter into the retention election. Finally, critics of merit selection argue that there is simply no conclusive evidence that merit selection actually produces a higher caliber of judges than either election or appointment. Given the subjective nature of evaluating judicial qualifications, it is unlikely to be proven that merit selection provides better judges. However, data collected from a study of the judicial system of New York City found that “elected judges are significantly more likely to be disciplined for judicial misconduct than their appointed counterparts.”66 REMOVAL OF JUDGES The office of judge is one of the most prestigious in American society; yet judges, like other humans, are susceptible to the vices of corruption, abuse of power, alcoholism, and so on. Consequently, we hear every year of cases of judges removed from the bench for various offenses.67 Judicial removal involves three very different kinds of situations. The first is the case of a judge who has committed an illegal act either before or after taking office. Judges have been accused of soliciting murder, accepting bribes, and committing perjury, among other crimes. In a sense, the case of a judge who commits a crime is the easiest to deal with because the judge is treated like any other criminal defendant and is therefore entitled to due process of law. The second kind of situation occurs when a judge has abused his or her power but has not necessarily committed a crime or an impeachable offense. For example, a district court judge in Suffolk County, New York had a coffee vendor brought before him in handcuffs so that he could berate the vendor for selling him a bad cup of coffee.68 Similarly, a Louisiana judge found a defendant guilty after taking a poll in his courtroom. Although many of the courtroom spectators failed to stand when asked to vote, a verdict of guilty was rendered and the appearance of impropriety was undeniable. Finally, a Michigan judge flipped a coin to ascertain with which parent two children should be allowed to spend the Christmas holidays. Both of the latter judges were subsequently censured.69 The third situation occurs when a judge is either incompetent or senile. In some ways, this is the most difficult of the three situations with which to deal. For example, a judge who may have served with distinction for many years may simply have stayed too long on the bench. Most states have mandatory retirement for judges at age 70, but senility does not always wait until then to strike. A judge, regardless of age, may simply be incompetent. Because there is no formal training for judges in the United States, virtually every lawyer is a potential judge. Yet lawyers have different talents and temperaments, so it is possible that a well-meaning judge may just be in over his or her head. Removal of the senile or incompetent judge must be handled carefully. Friends of the judge will usually suggest privately that it is time to resign or retire, but if the judge refuses, forced removal may be necessary. REMOVAL OF FEDERAL JUDGES There is only one formal method of removing Article III judges, and that, of course, is by impeachment. The Constitution specifies that impeachment is by a majority vote of the House of Representatives, followed by a trial in the Senate. Conviction is by a two-thirds vote of the Senate, and the penalty may not extend beyond removal from office and disqualification from holding further offices under the authority of the United States. Like other thorny constitutional provisions, impeachment has raised some serious issues. Foremost among those issues is the relationship between impeachment and judicial independence. The case of the impeachment of Justice Samuel Chase, the only Supreme Court justice to ever be impeached, illustrates the problem. By most accounts, Chase exhibited “clearly intemperate and political conduct as a judge.”70 Chase, a Federalist, was an outspoken critic of the Jefferson administration. In addition, critics accused him of abusing lawyers in his court and showing bias against Republican litigants. But at the heart of the controversy was whether a judge’s decisions could be the basis for

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removal from office. Happily for judicial independence, even some Republican senators who believed Chase was a disgrace to the Court were unwilling to vote for his removal on those grounds. The late Chief Justice William H. Rehnquist, writing about the controversy, concluded that several Republican senators put statesmanship above partisanship and voted to acquit Chase. Rehnquist asserted that Federalist senators would have voted to acquit Chase regardless of the evidence but that some Republican senators would have removed him “only if it could have been accomplished consistently with the maintenance of an independent judiciary.”71 There have been 15 impeachment proceedings against federal judges: Four were acquitted by the Senate, eight were convicted, and three resigned before a Senate vote (Table 3.4). The last federal judge to be impeached–– G. Thomas Porteous, Jr. of Louisiana—was impeached by the House on March 11, 2010 for participation in “a pattern of corrupt conduct for years.”72 In December 2010 the Senate found Porteous guilty on four articles of impeachment, disqualified him from holding federal office in the future, and stripped him of his yearly federal pension of $174,000.73 The procedurally most interesting modern-day impeachment involved Walter L. Nixon, Jr., who was convicted of perjury in February 1986 but refused to resign from the bench and still collected his (then) salary of $89,500 while in prison. The House impeached Judge Nixon in May 1989 by a vote of 417 to 0, and the Senate convicted him on November 3, 1989 by a vote of 89 to 8.74 In Judge Nixon’s case, the Senate used a select committee to hear the evidence. The full Senate, after receiving briefs and hearing oral arguments, voted to convict. Judge Nixon, arguing that use of the select committee violated the constitutional requirement that the Senate “try” all impeachments, appealed to the Supreme Court. The Court, however, ruled that Nixon’s case raised a non-justiciable political question and dismissed his suit.75

The federal removal process illustrates the problem with impeachment as the only means of removing federal judges. First, the impeachment process is cumbersome, especially the trial stage in the Senate. The Senate, in effect, may be forced to delay other legislative matters pending the outcome of the impeachment trial. A second problem is that impeachment must cover a variety of judicial removal situations. John Pickering, the judge impeached for insanity and alcoholism, undoubtedly deserved to be removed from the bench, but he probably did not deserve the ignominious distinction of being the first federal judge to be removed from office. George W. English was impeached by the House in 1926 for “partiality, tyranny, and oppression.”76 The question raised by English’s impeachment (he resigned before conviction by the Senate) was whether “partiality, tyranny, and oppression” constitute “Treason, Bribery, or other high crimes and misdemeanors,” the grounds for impeachment specified by the Constitution. The impeachment process must cover activities ranging from “partiality” to murder, with the same punishment for both. Or, as then Michigan Representative Gerald Ford stated, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment of history.”77 Finally, as the case of Walter Nixon illustrates, even a judge who has been convicted of a felony may continue to draw his or her salary until the long impeachment process has run its course. In recognition of this problem, Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act in 1980. The Act establishes a

procedure for investigating complaints against federal judges. If the allegations merit action, a committee composed of federal judges may investigate. Possible disciplinary actions for Article III judges include “private or public reprimand or censure, certification of disability, request for voluntary resignation, or prohibition against further case assignments,” while bankruptcy and magistrate judges are also subject to removal by the Judicial Council.78 REMOVAL OF STATE JUDGES Just as in other areas of court organization, the states have addressed the problems of judicial removal in a variety of ways. Forty-five states allow their state legislatures to impeach state judges.79 The impeachment process in the states parallels the federal model, with some modifications, such as the size of the majority needed to impeach in the House or to convict in the Senate. For example, Justice Rolf Larsen was removed from the Pennsylvania Supreme Court, the first judge to be impeached and convicted in the state in nearly 200 years. The basis of the removal was improperly meeting with an attorney to review two of the attorney’s pending cases. The House vote was 199 to 0 to impeach Larsen, and the Senate vote was 44 to 4 for conviction; he was acquitted on six other charges.80 The New Hampshire House of Representatives impeached the chief justice of the state supreme court, David A. Brock, for allegedly interfering in the divorce case of another judge.81 Another method of removal is legislative address. Legislative address, unlike impeachment, is not reserved for high crimes and misdemeanors but may be used in cases of incompetency, senility, or partiality. The judge in question does not have to commit an indictable offense to warrant removal. Under legislative address, the unfortunate Pickering could have been spared the indignity of impeachment. A third method of removal that is popular in some states is recall. Recall is a method of removing officials, not only judges, from public office before the expiration of the official’s term. Recall begins with the circulation of a recall petition. Suppose a judge was deemed deserving of removal from office. A group of citizens could start a recall campaign by securing a specified number of signatures on a recall petition. In some states the petition must be signed by a specified percentage (e.g., 5 or 10 percent) of the registered voters. If enough valid signatures are collected, the judge in question must face a retention election similar to that used under the Missouri Plan. However, the question before the voters would be, “Shall Judge X of the [state supreme] court be removed from office?” The voters answer either yes or no. Other states allow alternative candidates to run against the incumbent judge in the recall election. This permits the voters to show their discontent with the incumbent by electing someone else to the position. Wisconsin judge Archie Simonson made some inappropriate remarks about the “provocative clothing” worn by the young victim during a rape trial he was conducting. The remarks so angered women’s groups in Madison that they mounted a successful recall campaign against Simonson.82 Finally, a fourth device used by some states to discipline judges is the judicial conduct board/commission. As we have seen, the severity of alleged offenses against judges ranges from the trivial to the very serious. Some allegations made against judges prove to be no more than the unfounded complaints of disgruntled litigants who lost a case over which the judge presided. Still other complaints are more serious and deserve some disciplinary action. Similarly, the punishment should fit the offense. For this reason, some states have created judicial conduct boards to investigate allegations made against judges to determine whether disciplinary action is warranted. If a judge is found guilty of misconduct, the board is empowered to discipline the offender. Such discipline could be a private or public reprimand, censure, suspension, or a recommendation of removal from office by impeachment or legislative address. State judicial conduct boards thus possess a variety of punishments that are appropriate to the seriousness of the offense. WILLIAMS-YULEE V. FLORIDA BAR

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The selection of judges can create a clash of democratic values. In Williams-Yulee v. Florida Bar the U.S. Supreme Court was confronted with a dilemma about the role of free speech in a democratic society and the role of elected judges in a democracy. BACKGROUND OF THE CASE Canon 7C(1) of the Florida Code of Judicial Conduct prohibits a candidate for any judicial office in the state from personally soliciting funds for his or her election campaign. In September 2009 Lanell Williams-Yulee (hereafter Yulee) ran for a seat on the county court of Hillsborough County. Yulee admitted that she had mailed a letter to local voters soliciting campaign contributions and posted the letter on her campaign website, but argued that her actions were protected under the First Amendment. After a hearing, the Florida Supreme Court upheld a finding of guilty that carried with it a public reprimand and a payment of $1860 to cover the cost of the proceeding. RULING IN THE CASE In a 5 to 4 decision the U.S. Supreme Court held that Canon 7C(1) does not violate the First Amendment. In an opinion written by Chief Justice John Roberts, the majority applied “strict scrutiny” and ruled that the ban on personal solicitations was narrowly drawn to serve a compelling state interest, namely the state’s interest in preserving public confidence in the fairness and independence of the state’s judiciary. The Court was mindful that in other cases it had held, campaign contributions are a form of free speech protected by the First Amendment. However, the Court also noted that even though judges are elected in 39 states they are not “politicians” in the usual sense of the word. Although voters expect candidates for legislative and executive positions to favor the interests of their supporters, judges are expected to be impartial. ANALYSIS OF THE CASE In upholding the ban on the personal solicitation of campaign contributions, the Court applied what is called “strict” or “exacting” scrutiny. Under normal judicial review the Court assumes that a law passed by Congress or a state is constitutional, thus putting the burden of showing that it is unconstitutional on the party challenging the law. However, strict scrutiny does the opposite: it assumes that any law which infringes a constitutionally protected right, such as freedom of speech, is unconstitutional, thus shifting the burden to the state to show that it is constitutional. In order to survive strict scrutiny, the state must show, first, that the law is necessary to further a “compelling state interest” and that, second, it has been narrowly drawn so as to infringe the constitutional right as little as possible. Often, but not always, the level of scrutiny which the Court adopts will decide the fate of the law. Nevertheless, strict scrutiny sets a very high bar for the state to meet in defending the constitutionality of its law. On the question of whether Canon 7C (1) furthers a compelling state interest, the Court held that unquestionably the state’s interest in maintaining the integrity of its judicial system meets that standard. The Court notes that the idea of an impartial judiciary dates back to Magna Carta (1215). The people must have absolute confidence in the fairness and impartiality of the courts and in those chosen to administer justice. Even the appearance of impropriety undermines the state’s interest in maintaining the integrity of the judicial process. The fact that lawyers and other parties likely to have business before the court are also most likely to contribute to judicial candidates is another reason to limit personal solicitations. Indeed, a litigant may fear that failure to make a contribution to the winning candidate would prejudice the judge against him or her. Therefore, the majority found that Canon 7C (1) sufficiently furthers a compelling state interest. The second requirement of strict scrutiny is that the statute be narrowly drawn in order to limit the burden placed on a fundamental right, in this case freedom of speech. Candidates for judicial office in Florida may form campaign committees that may, in turn, solicit funds on behalf of their campaigns. Yulee argued that judicial candidates may legally write thankyou notes to contributors and therefore may learn the identities of those who have contributed. But the Court

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notes the ban on solicitation addresses the issue most likely to undermine public confidence in the judiciary: personal solicitation. The fact that other forms of contact with contributors are not banned only supports the fact that the law was narrowly written to minimize the infringement on free speech. As indicated in the introduction to this case study, Williams-Yulee v. Florida Bar represents a clash of democratic values. Democratic theory is based on the accountability of elected officials to the voters. On the other hand, due process of law dictates that the parties bringing a case before a presumably impartial judge should not have the deck stacked against them. As noted in Chapter 1, the legitimacy of the judicial system rests in part on the assumption that judges will administer justice impartially. It was also noted that law is a struggle between groups with different values. Certainly, some people will place more value in holding judges accountable, while others will prefer both the appearance and the reality of impartial justice. Finally, in such matters as these, there can be no right or wrong answer. CONCLUSION In this chapter, we have examined court organization in the United States. Because of our federal form of government, we have a federal court system superimposed on the 50 state court systems. In addition, federalism results in considerable variation among the states in the organization of their courts as well as in their substantive and procedural law. Federalism has resulted in different approaches to the selection and removal of judges. In short, our federal form of government adds complexity to our courts, but it also adds an element of diversity so that each state may deal with judicial organization, selection, and removal in its own way. For better or for worse, federalism has had a remarkable impact on our judicial system.

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