Trial and Appellate Judges Should be Selected by Different Methods

Tailored Judicial Selection is Maine Law Professor Dmitry Bam's new article in the University of Arkansas at Little Rock Law Review.

The abstract says in part:

"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."

I agree, and thank Prof. Bam for quoting Stephen J. Ware, Originalism, Balanced Legal Realism and Judicial Selection: A Case Study, Kan. J.L. & Pub. Pol'y, Spring 2013, at 165, 181: "The political/lawmaking side of judging looms larger, the higher the court. In other words, the extent to which (inevitable) judicial lawmaking allows judges to inject their political views into law rises, the higher the court. Trial judges play less of a lawmaking role than appellate judges, especially supreme court justices, simply because court systems are hierarchical and trial courts are at the bottom. The legal rulings of trial courts can be reversed, de novo, by appellate courts. In contrast, appellate courts are often the final word, as a practical matter, on issues of law."

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar

Williams-Yulee v. The Florida Bar, will be argued before the Supreme Court this week: January 20, 2015.

My new article, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. the Florida Bar, in Vanderbilt Law Review En Banc, Vol. 68, 2015, is part of a Roundtable including several thoughtful articles. My abstract:

 At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates broader questions about how judicial election campaigns should be funded and ultimately whether to have judicial elections at all. I bring to Williams-Yulee a longstanding interest in a wide range of legal and policy issues surrounding judicial selection, including issues surrounding the extent and implications of correlations between judicial campaign contributions and judges’ rulings. Williams-Yulee seems an opportune time to reconsider my and others’ longstanding concerns about judicial elections.

Comparative Judicial Selection and Judicial Supremacy

Different nations select their judges differently.  I believe the more lawmaking power judges (particularly supreme court justices) have, the more appropriate for them to be selected in a democratic way.  The United States is the "example par excellence" of judicial supremacy over the other branches, according to Judicial Supremacy: Explaining False Starts and Surprising Successes by University of Washington political scientists Victor Menaldo and Nora Williams.  They write:

"The example par excellence of judicial supremacy is the United States system. For
example, in the 2000 case of Bush v Gore the judiciary ruled on the constitutionality of a case
that had an impact on both the executive and legislative branches. The Supreme Court ultimately
awarded the contested presidential election George W. Bush. While Al Gore’s party held the
executive, the losing branch abided by the decision of the judiciary instead of taking what could
have been dramatic action."

Do Judges Follow the Law?

"Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior" includes an empirical finding a broad topic ("Do Judges Follow the Law?") that is central to debates over judicial selection.

The paper, by two University of Chicago law professors, Todd Henderson & William Hubbard has the following abstract “Do judges follow the law? In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. Although interpretation differences could explain deviation between congressional will and the law as applied, in this model there should be no divergence where the law is unambiguous. Section 21D(c)(1) of the Securities Exchange Act is such a clear law: it requires courts to certify attorneys complied with Rule 11(b) of the Federal Rules of Civil Procedure, which forbids frivolous or unsupported claims, in every case arising under the Act. In this paper, we provide data that rejects the naïve model: courts make the required findings in less than 14 percent of cases in which such findings were required by law. This suggests judges either do not know of the law or, if they do, fail to follow it. We also show that required Rule 11(b) findings about sanctions are made overwhelmingly in cases where sanctions would be least likely – that is, in orders approving settlements – and such findings are extremely rare in cases where sanctions would other be more likely – that is, where motions to dismiss are granted. To explain this seeming paradox, we offer an account that highlights crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases.”