Judicial Selection

Of all the difficult choices confronting societies in designing legal systems, among the most controversial are those pertaining to judicial selection and retention: how should a nation select its judges, and how long should jurists serve? Some of the most fervent constitutional debates on the institutional design of the judicial branch were not about power or competencies; instead, they focused on who would select and retain members of the judiciary. During the American Constitutional Convention, for example, the framers debated several methods of selection. Some delegates wanted Congress to appoint judges, and some wanted the chief executive to appoint them. Alexander Hamilton (1755–1804) proposed the compromise that the delegates ultimately accepted. The president nominates a federal judge, and the Senate offers its “advice and consent.”

Over two hundred years later, similar debates emerged as societies that had been part of the Soviet Union begin to formulate constitutions. A few adopted the general approach used in the United States: presidential nomination followed by parliamentary appointment for constitutional court justices. However, the majority moved in a different direction, dividing the power among various actors (including the courts themselves). Moreover, many eschewed the American approach of bestowing life tenure, opting instead for fixed terms of office.

What these debates—whether in Philadelphia in 1787 or in Moscow in 1993—underscore, of course, is that political actors believe that institutions governing the selection and retention of judges “matter”; that they will affect the types of persons who will serve and, in turn, the choices that judges will make. Some commentators, for example, assert that countries that give judges life tenure will have a more independent judiciary, one that places itself above the fray of ordinary politics, while those subjecting judges to periodic checks conducted by the public or elected officials will have a more accountable judiciary. This debate underscores the fact that not only are the types of institutions that govern the selection of judges fundamental to discussions about judicial independence versus accountability (or interdependence), but also that they convey important information about the values that a society wishes to foster.

The possibilities for choice abound. To see this, one need look no further than the United States. At the federal level, of course, the president nominates and the Senate confirms judges, who serve for life; these judges, in other words, need not obtain the direct approval of the public to attain or retain their jobs.

At the state level, 80 percent of judges, according to the American Bar Association, face election at some point in their careers. By the American Judicature Society's tally, in twenty-one states, judges serving on courts of last resort are initially elected to office either on a partisan ballot (in eight states) or a nonpartisan ballot (in thirteen states). In all twenty-one states, judges must appear on a ballot of one form or another to retain their positions. Six states enable the governor (four states) or the legislature (two states) to appoint high court judges, and, in many instances, to reappoint them. Of these six states, only New Hampshire gives its justices life tenure, and then only until they reach the age of 70 years. The remaining twenty-three states (along with the District of Columbia) employ some version of the Missouri plan (merit plan).

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