This exploratory article considers various aspects of the linkage between the judicial selection and the recruitment of “good”—as defined here—judges and the challenge of determining and applying objective criteria to particular individuals. Certain selection procedures are suggested for maximizing the recruitment of good judges. The article examines five principal judicial selection methods used in the United States, with a focus on federal judicial selection and the changes brought about during the Carter administration. Although evaluation of judicial candidates will remain, for the most part, a subjective process, it may be possible to develop somewhat less subjective ways of assessing who does and does not possess the qualities that make for a good judge.
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References
1.
1. There are five methods: election of judges using a party ballot, election of judges using a nonpartisan ballot, merit selection (the Missouri Plan), executive appointment with confirmation by another body (for example, senate or governor's council), and selection by the entire legislative branch.
2.
2. A review of state and federal provisions, although somewhat dated, can be found in Russell R. Wheeler and A. Leo Levin, Judicial Discipline and Removal in the United States (Washington, DC: Federal Judicial Center, 1979).
3.
In general, see Philip L. Dubois, From Ballot to Bench: Judicial Elections and the Quest for Accountability (Austin, TX: University of Texas Press, 1980), pp. 3-35 (here-after cited as From Ballot to Bench).
4.
4. See, for example, Sheldon Goldman, “Judicial Appointments to the United States Courts of Appeals,”Wisconsin Law Review, 1967:186, 206-211 (Winter 1967).
5.
5. New York Times, 1 Jul. 1981, p. A-19.
6.
6. Joel B. Grossman, Lawyers and Judges (New York: John Wiley, 1965), pp. 108-113.
7.
7. Victor S. Navasky, Kennedy Justice (New York: Atheneum, 1971), p. 275.
8.
8. There were three questions that were as follows: (1) President Carter, in his Executive Order of November 8, 1978, stated that the standards for evaluating a proposed nominee to the federal judiciary include whether the person “possesses and has demonstrated commitment to equal justice under the law.” In what specific ways have you demonstrated a commitment to equal justice during your career?; (2) An ethical consideration under Canon 2 of the American Bar Association's Code of Professional Responsibility states, in part, that: (a) “Important functions of the legal profession are to educate laymen to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available”; and (b) “Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged.” Describe what you have done to fulfill each of these responsibilities; (3) Do you belong to any organization or club which excludes persons or discriminates on the basis of race, sex, or religion? List, with dates of membership. Have you been involved in efforts to change such policies?
9.
9. One other question is also asked: “What actions in your professional and personal life evidence your concern for equal justice under the law?”
10.
10. See the Houston Post, 11 May 1979, p. B-1; New York Times, 14 Jul. 1979, p. 5, for an example of a judge who apparently misled the committee and boasted of it later.
11.
See the discussion in Griffin Bellet al., Whom Do Judges Represent? (Washington, DC: American Enterprise Institute, 1981), pp. 1-29.
12.
12. See my argument in Whom Do Judges Represent?, ibid., p. 15.
13.
13. See, for example, the articles reporting the experience of electoral contests for the highest judicial offices in the State of New York: New York Times, 25 Feb. 1972, p. 1, 10 Mar. 1972, p. 31, 9 Nov. 1972, p. 26, 12 Oct. 1973, p. 1. In general, however, see the arguments and empirical findings in From Ballot to Bench.
14.
14. See, in particular, From Ballot to Bench, chs. 6 and 7.
15.
Henry R. Glick , “The Promise and the Performance of the Missouri Plan: Judicial Selection in the Fifty States,”University of Miami Law Review, 32:509 (Jun. 1978).
16.
and Sheldon Goldman and Thomas P. Jahnige, The Federal Courts as a Political System, 2nd ed. (New York: Harper & Row, 1976), pp. 47-78.
17.
and Elliot E. Slotnick, “What Panelists are Saying About the Circuit Judge Nominating Commission,”Judicature, 62:320 (1979).
