The responsibilities of trial court judges
extend through the criminal court process. From arrest through sentencing, judges make critical decisions affecting those accused of crimes. Judges determine if there is probable cause to issue a search or arrest warrant, set bail, rule on pretrial motions, accept guilty pleas, referee trials, and mete out sentences. At all stages, judges safeguard the rights of the accused and protect the interests of the public. Appeals courts judges have different responsibilities, including considering legal issues raised in appeals, examining the constitutionality of statutes, and preparing opinions that explain the reasons for their decisions.
Most of the federal judges in the United States come from a special segment of the nation's middle and upper classes: the cultural elite. Many are private school and Ivy League graduates who come from socially prominent and politically influential families with a tradition of public service. It is not a coincidence that all of the justices on the 1998 U.S. Supreme Court received their law degrees from the most prestigious law schools in the United States—Harvard, Stanford, Yale, Northwestern, and Columbia.
Being a racial minority citizen and/or a woman is not an advantage for one seeking to become a federal judge. Federal judges are overwhelmingly old, white, male, and Protestant. The number of women and racial minorities on the federal bench has always been small in comparison to the representation of these groups in the general population. In the history of the Supreme Court, only two blacks and two women have served as justices.
Thurgood Marshall, who was the grandson of a slave, became the first African‐American to serve on the Supreme Court. During Marshall's 24 years on the Court, he took liberal positions on a variety of criminal justice issues, including capital punishment and civil liberties. Marshall influenced fellow justices in rulings that recognized protection against double jeopardy in state courts and the right of defendants not to have jurors excluded on racial grounds. He helped shape the Court's decision to abolish the death penalty in 1972 but saw the Court reinstate it several years later. On the Court, Marshall said little during oral arguments and conferences, except to train his sarcasm on lawyers presenting weak arguments or on a fellow justice. During a death penalty argument in 1981, Justice Rehnquist suggested that an inmate's repeated appeals had cost the state too much money. Justice Marshall interrupted, “It would have been cheaper to shoot him right after he was arrested, wouldn't it?”
Factors that influence who sits on the federal bench
First, it has been the custom to appoint lawyers to the federal bench who have demonstrated professional competence. Second, politics matters—nine out of ten federal district court judges come from the same political party as the appointing president.
Selecting a federal judge is a multistage process. After consulting with certain senators and the attorney general's office, the president makes a nomination. Next, the Senate Judiciary Committee conducts an investigation of the nominee's fitness for the bench. If the committee's vote is favorable, it sends the nomination to the Senate, where it is either approved or rejected by a majority vote.
If the judicial vacancy is in a lower court, senatorial courtesy comes into play. Whenever a vacancy exists on a federal district court, the president seeks input from the senators of the president's political party who represent the state in which the vacancy exists. The president sometimes gives these senators a veto over the nomination.
Various interest groups lobby for or oppose nominations to the federal courts. When President Bush nominated Clarence Thomas to the Supreme Court, for example, leaders from the National Association for the Advancement of Colored People and other groups opposed Thomas because of his conservative political views. Conservative interest groups rallied to support Thomas.
Some presidents make political ideology a litmus test. In that case, unless a person shares the president's political beliefs, he or she need not apply for appointment to the federal bench. By picking Republicans with established records as political conservatives, President Ronald Reagan advanced a crime control agenda through conservative judges who have expanded police power and limited civil liberties. Today, the conservative voting record of the Court in appeals in criminal cases still bears the stamp of Reagan and his fellow Republican president, George Bush.
The demographic and socioeconomic profile of state judges is similar to that of federal judges. Both women and racial minorities are underrepresented. State judges are heavily drawn from whichever political party dominates in a particular state. The five paths to a judgeship in any one of the 50 states are as follows: partisan election, nonpartisan election, gubernatorial appointment, legislative appointment, and merit selection.
To take the politics out of the judicial selection process, reformers in the early 1900s instituted the merit method of picking judges. The first state to adopt this method was Missouri, and ever since, such approaches have been labeled the Missouri Plan. States with this plan use a mix of elections and appointments. The typical scheme involves several stages: a nonpartisan committee (consisting of attorneys from a state bar association and other prominent citizens) nominates candidates; the governor appoints one of these candidates to the bench; and the new judge stands for a retention election after a one‐ to two‐year term in office. Critics of the Missouri Plan point out that the white, upper‐class attorneys, who dominate the committees, nominate mostly white, upper‐class judges.
The major influences on judicial decision making
Judges make decisions on motions, petitions, and judicial policy questions. On what basis and for what reasons do judges rule the way they do?
Important differences exist between trial judges and appellate judges in terms of how they make decisions. Whereas trial court judges often must make decisions on the spur of the moment, appeals court judges have the luxury of being able to reflect on a case and/or discuss it with their staff and colleagues.
Legal scholar Robert Carp advances the idea that all judges are subject to two kinds of influences: the legal subculture and the democratic subculture. The legal subculture consists of rules and practices that guide decision making inside the legal profession. For example, most judges are committed to following precedent. A precedent is a case that serves as an authoritative example for future cases presenting identical or similar questions. The doctrine of stare decisis (“let the decision or precedent stand”) is another important rule within the American legal subculture. In addition to precedents and other legally relevant factors, extralegal factors within the democratic subculture carry weight in judicial decision making. Political values lie at the heart of this democratic subculture.
The importance of the legal subculture
Legal precedents strongly influence both trial court judges and appeals court judges. The legal subculture has more influence over decision making in both trial and appeals courts than the democratic subculture, according to Carp.
The relevance of the democratic subculture
Judges' political identification affects their decision making. Political party affiliation is a powerful predictor of the outcome of judicial decisions. Research on federal appeals court judges finds that Democratic judges are more supportive of the rights of criminal defendants than Republican judges. A major study of the partisan voting patterns on the Supreme Court also reports a higher level of support for defendants' rights among Democratic justices than among Republican justices. State appellate courts also show some evidence of partisanship.
Public opinion, another aspect of the democratic subculture, also has an impact on judicial decision making. It has less effect on federal judges, who are appointed to office for life, than on state judges, who run for re‐election. One study of California state trial courts found that judges altered their sentencing practices in marijuana cases following a referendum on whether or not there should be a reduction in the harshness of sentences for personal use of marijuana.
Political ideology can also affect judicial decision making. When judges allow politics to overpower reason, they run the risk of accepting or rejecting claims when they have no good grounds for doing so. Justice William O. Douglas, a liberal, once voiced concern in 1974 about what would happen if he resigned from the Supreme Court. “There will be no one on the Court who cares for blacks, Chicanos, defendants, and the environment,” he said. Even half functioning, he said, he would be better than a conservative replacement. When a friend asked Douglas how he would decide cases if he could no longer see to read the cases, he said: “I'll listen and see how Chief Justice Burger [a conservative] votes and vote the other way.”
Justice Douglas erred in his reasoning. If individuals propose that they would reject a claim or position because it comes from a source they disapprove of, they commit the fallacy of an argument ad hominem (literally, “to the man”), a flawed reasoning strategy in which a person attempts to disprove an argument or position by condemning its source. Douglas, if serious, seemed to propose that, in the future, he would attack Burger's credibility or politics rather than provide compelling evidence to disprove Burger's positions on criminal appeals. The proper response to claims and arguments from sources whose credibility is in doubt is to suspend judgment and focus on the question of whether their arguments support their conclusions.
Judicial misconduct and its remedies
Judicial misconduct includes activities, such as bribery, that reduce public confidence in the integrity and impartiality of the judiciary. Most states have a judicial‐conduct commission that investigates charges of misconduct against state judges. A state supreme court usually decides whether or not to discipline a judge. About ten state judges are removed each year. Federal judges can be removed only if they are impeached—found guilty of treason, bribery, or other high crimes and misdemeanors in a trial convened in the U.S. Senate. In the history of the federal judiciary, seven judges have been removed through impeachment.
The nation's founders made the courts an independent, coequal branch of government for two reasons. First, making the judiciary independent would enable it to reach impartial decisions in cases. Second, making the judiciary a third branch of government would allow it to check overconcentrations of power in the executive and legislative branches. Although the judicial branch is independent of the two political branches, it also depends on them. The political branches authorize appropriations, appoint judges, and decide whether to remove judges from office.
Thomas Jefferson protested in the Declaration of Independence that King George III “made Judges dependent on his will alone.” Jefferson was referring to the fact that British judges did not dare rule against the Crown or Parliament because, if they did, they would be removed from the bench. For this reason, framers incorporated the principle of judicial independence into the U.S. Constitution by granting federal judges life tenure.
Judicial independence means judges need not fear punishment for using their best judgment to render decisions. An independent judge doesn't have to be afraid of losing his or her job when ruling against overzealous law enforcement or discriminatory policies. Judges who are fearful of being punished for unpopular decisions find it extremely difficult to be neutral arbiters of matters that come before them.