Tailored Judicial Selection
25 Pages Posted: 24 Jul 2018
Date Written: January 1, 2018
The American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within a jurisdiction have been chosen the same way. Proponents of this view see judges at all levels of the judiciary — trial, intermediate appellate, and courts of last resort — as a homogenous group, at least when it comes to how we choose them. Our federal judiciary exemplifies this approach. All Article III judges are appointed by the president and confirmed by the senate. All of them serve for life. We have adopted this unilocular system even though the work of a judge in, say, the Western District of Arkansas is very different from the work of a Justice of the U.S. Supreme Court.
Most states have taken a similar tack, with approximately forty states using a uniform selection method for all levels of their state courts. For example, in fourteen states all judges are appointed by the governor from a list submitted by a judicial nominating commission. Another fourteen use nonpartisan elections for all their judges. Eight more use partisan elections for all their judges. All in all, once a state chooses a selection and retention method for its judges, it adopts that approach for the whole judiciary.
But it does not have to be this way. In this article, I will suggest that we should at least consider tailoring the judicial selection method to different levels of the judiciary. After all, judges are not a monolithic, homogenous group, and the work of a trial judge differs significantly from the work of an appellate judge. I will show that different selection methods may be appropriate for trial judges than for appellate judges. What I call “tailored judicial selection” can help address some of the concerns raised by the proponents and the opponents of various methods of judicial selection.
Keywords: Judicial elections, judicial selection, judicial impartiality, judicial independence, judicial accountability
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