Today’s Ask Civics 101 Question: How Do Judicial Appointments and Elections Work? Read on or listen to this short podcast episode for the answer.
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A current prominent example is Associate Justice Amy Coney Barrett, who was appointed by President Trump and confirmed by the US Senate.
Amy Steigerwalt, Professor of Political Science at Georgia State University, explains, “At the federal level? The constitution provides that Article III judges should follow the same procedure as other high-ranking officials in the US government. They are nominated by the President and with the advice and approval of the Senate. That is the entirety of the information that we get about it. ”
Article III Judges are those named in Article III of the Constitution. This is the article that says there should be a Supreme Court, Congress can also set up lower courts, and judges stay in office if they are “well behaved”. Good behavior has broadly been interpreted as “indefinitely” or for life.
Indeed, Congress has established lower federal courts in the United States. There are appeals courts, district courts and an International Commercial Court. In total, there are currently 870 Article III judges in 2020. If someone dies or retires, the president can appoint someone to fill that seat and the Senate approves it.
“Judges, United States judges, and federal judges serving in the county and county courts,” says Amy, “cannot be removed from office involuntarily except by impeachment or death. Otherwise, they will stay until they decide.” they no longer want to be a judge and retire. “
The idea here is the independence of the judiciary – judges who don’t allow themselves to be influenced by politics in the course of their careers because they don’t have to appeal to the political landscape. You don’t have to prove yourself to the parties or the voters. However, there are judges in the country who have to take care of appealing to the voters. When we look at the state system, we often encounter the choice of justice.
“Court elections,” says Amy, “were largely made through movement. It started at different times, but really culminated in the 1960s and 1970s, 1980s in the American states with many people arguing that on some level of judging, that judicial independence had given them far too much power, that they were too far were separated from the people. There was no accountability. There was no way to say you were doing a bad job, and that’s why we want you out of office. Instead, there was this really high bar of getting someone out of office, which was an impeachment process because many states had adopted the federal government system in the same way. “
The federal system of government is appointed judges. And many states have some form of judicial appointment for state courts, whether by the governor or a commission, or a combination of both. Yet many other elections are held. These elections are sometimes partisan, with judges joining a particular party, and sometimes bipartisan.
“These competitive elections are more likely to be non-partisan to try to decouple something from normal politics,” says Amy.
There are also special types of elections that appear in states with nomination procedures. This is known as “retention choice”. A judge is appointed, and after a period of time, voters are asked to consider whether they think that person should stay in the bank.
There is a vote and the incumbent judge can either stay or be removed. However, not everyone agrees that choosing a judge is good for the legal system.
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“Those who advocate the independence of the judiciary say that judicial elections really undermine our legal fabric. They turn judges into high-ranking politicians who have to worry about campaign funds, who have to worry about voter favor As the elections approach, the judges will actually change their votes. For example, “Amy explains,” they are much more likely to withhold criminal convictions for fear of voter backlash than knock them down. So that’s kind of version number one. “
The advantage of the elections? Judicial accountability.
“It is important that people pay attention to what is going on in the legal system to have a say in who their judges are and what decisions are made. So it has benefits in terms of making sure the public pays more. ”Paying attention to what is going on in the courts gives more say in it, and it is also a way to keep judges informed about them Don’t make wildly problematic decisions without the ability of the public or the other branches to be able to contain them again. And it is also a way of dealing with corruption really much better than the other system. “
There are groups out there who have pioneered the possibility of an accountability system for Article III judges as well. A constitutional amendment would be required to abolish their tenure appointment – almost impossible given the requirements.
So the leading proponents of change are less about judicial elections, says Amy, “and more about both terms. So you serve 18 or 20 years and then you’re done. Sometimes it’s about age limits or distance. But I’d say the most prominent thing I’ve seen is actually not so much the move to an electoral system as the setting of term limits. And there is at least a little bit of debate about whether or not this would be possible versus normal legislation by Congress. […] The other issue is the people who would make the final decision, of course the judges whose potential seats would be in jeopardy. “