Judicial Process Overview

AN OVERVIEW OF JUDICIAL PROCESS
"If they have respect for the work of the court, their respect for law will survive any shortcomings" (Arthur Vanderbilt)

    First, the federal court system is discussed, and then, the state courts are covered in this lecture. The three levels of the federal court system and the order in which they were established are: the Supreme Court; the courts of appeals; and the district courts. It is important, first of all, to understand the history which led up to creation of the federal judicial system. Prior to ratification of the Constitution, the country was governed by the Articles of Confederation. The Articles of Confederation were dramatically flawed because, among other things, no provisions were made for a national judiciary. The first event to remedy this situation was the Constitutional Convention (in Philadelphia) of 1787 where two (2) proposals were debated:

        1. Randolph, or Virginia Plan – proposed creation of both a Supreme Court and a series of inferior federal courts (the nationalist position)
        2. Paterson, or New Jersey Plan – proposed creation of a Supreme Court only, to handle appeals from state courts, protect national rights, and provide uniform judgments throughout the country (the states’ rights position, which held sway, resulting in the compromise contained in Article III of the Constitution: “The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.”)

    The second event involved in creation of the federal court system was the Judiciary Act of 1789 (aka Senate Bill 1). This law set up a Supreme Court (consisting of six justices), three circuit courts (of appeals), and thirteen district courts. Here, the states’ rights advocates lost out because not one, but two lower federal court systems were created. A majority of legislators felt that relying upon state courts alone would be too parochial and might result in unjust and/or inconsistent decisions. There was also the need for establishment of places were foreign litigants could have their cases heard. The three levels of the federal court system are illustrated below.

U.S. Supreme Court: seats 9 justices, a chief and eight associates; has original jurisdiction in cases involving ambassadors or state versus state disputes; hears other cases when 4 agree to issue a writ of certiorari (pronounced sur-shee-uh-rah-ree) to review a lower court case, and different sides file briefs and attorneys make oral arguments; a vote of 5:4 or higher, with concurring opinions and/or dissents may be a landmark decision if it ends controversy and settles Constitutional interpretation.

U.S. Circuit of Appeals: consist of 167 judges among 13 courts, dispersed regionally, twelve to look for judicial error in lower courts, and one that handles patents and when the U.S. government is a defendant; they have mandatory jurisdiction (must hear appeals) from lower courts, and appeals are either frivolous, ritualistic, or nonconsensual, with nonconsensual appeals sometimes settled as precedent at this level.

U.S. District Courts: consist of 650 judges among 95 courts dispersed in every state and territory; they have original jurisdiction (conduct trials) over criminal violations of federal law, and are assisted by 369 U.S. Magistrates who handle pre-trial matters and may try minor offenders; some courts at this level have specific responsibilities; many have cases backlogged.

    It has been said that the US Supreme Court is distinctly American in conception and function (Hughes 1966). The Supreme Court must, of course, interpret federal legislation, but that is what any supreme court in any country would do. In America, the Supreme Court also plays two additional roles: (1) balancing state and national interests; (2) maintaining the rights and duties of individuals. The first of these should be evident from our discussion of the historical context above, and the second is what most people think of when they think of constitutional law – the relationship between individuals and the state. Nowhere in the world other than the US does a Supreme Court exist that so directly influences the everyday lives of individuals. Let’s examine a few key historical cases.

    In Chisholm v. Georgia 2 Dallas 419 (1793), the Court ruled that a citizen of one state could sue another state in federal court. This became quite controversial and had to be overturned by the Eleventh Amendment in 1798. The Court then expanded its powers, under the leadership of Chief Justice John Marshall, into the policy-making arena by asserting its power, under Marbury v. Madison (1803) to declare an act of Congress unconstitutional. A few years later, the Court also claimed the right of “judicial review” – a similar power to declare the actions of state legislators unconstitutional. Judicial review is a feature that sets American courts apart from those in other countries.

    In an average year, the Supreme Court provides decisions and signed opinions on about ninety cases, but hundreds of more cases are disposed of with less than the full treatment. In principle, US judges are not supposed to make policy, but in practice, whenever a judge chooses between two or more interpretations of law, they are making policy, at least for the specific litigants in the case. Also, if the interpretation is accepted by other judges, policy has been made for all jurisdictions in which that view prevails.

    Most of what the Supreme Court does, however, is related to its role as “final arbiter” (the highest appellate tribunal in the country). In this role, it conducts reviews of lower court decisions by deciding whether or not to grant a “writ of certiorari” which orders the lower court to send up a complete record of the case. Denial of a writ of certiorari usually means that the lower court decision stands, but occasionally the Court will issue an unsigned, brief opinion on a lower court issue, and this is called a “per curiam” opinion.

    The Supreme Court (SCOTUS) is in session every year from the first Monday in October until the business of the term is completed, usually in late June or July. The court can normally hear four cases in one day in terms of the approximately thirty minutes given to each side for “oral arguments.” Attorneys usually relish the opportunity to present oral arguments before the Justices, and attorneys are usually interrupted with probing questions when doing so. However, most of the work of the Court is spent in “conference” behind closed doors where informal discussing and voting takes place. Usually Wednesdays and Fridays are set aside for conferences. No official record is kept of conferences.

    The “opinion of the court” is the majority opinion, which must be a written opinion by the Chief Justice, or in cases where the chief justice sides with the minority, the written opinion of the next most senior member of the majority group. Those who disagree with the majority opinion may write a “concurring opinion” (which essentially agrees with the majority but disagrees over the reasoning for reaching that conclusion) or may write a “dissenting opinion” (which doesn’t technically require the written reasons for dissent, but if more than one justice dissents, then each justice may write an opinion or they may join together in their single opinions). It can be noted that there is nothing like this American practice of issuing divided judgments anywhere else in the world. Other countries require their Supreme Court to issue only one judgment, with no dissenting or concurring opinions. The pattern of SCOTUS opinion-making is reflected in the information below.

The courts of appeals have been called “the least noticed courts” (Early 1977). They are officially named “courts of appeals” but continue to be referred to colloquially as “circuit courts.” Historically, there have been several name changes as well as numerous organizational changes over the years. The earliest organizational scheme was the Judiciary Act of 1789 which set up three circuits (or regions) around the country and required two Supreme Court justices to travel and help staff these courts. Then, there was the Judiciary Act of 1801 (aka, the “midnight judges act”) which eliminated circuit riding, or the long traveling required of circuit judges. Congress quickly repealed this, however, and reinstituted circuit riding, as it was the only way America could staff these courts for many years. Also, two judges traditionally constituted a quorum in federal circuit courts for many years. In 1891, the Evarts Act was passed which for a time (up to 1911) resulted in the relatively confusing side-by-side existence of circuit courts which heard appeals and like district courts, held trials. In 1925, yet another Judiciary Act clarified the role of the courts of appeals. Today, three judge panels are the norm in circuit courts; they are now truly appellate courts; and they exist in twelve regional circuits across the US (note: there has been talk since 1990 of splitting up the Ninth Circuit, which consists of seven West Coast states, because of heavy workloads and geographical expanse.) The graphic below is a map showing the federal circuits:

    In practice, the courts of appeals are the “courts of last resort” for appeals in the federal court system. The majority of criminal cases involve federal prisoners appealing their conviction, but these courts are also empowered to act in matters of civil law, provide statutory interpretation, and conduct administrative review of administrative agencies. The way an appeal works in these courts is primarily through a process of “error correction,” which is the courts of appeals’ primary function. The courts of appeals do not seek out new evidence, but instead examine the record of lower courts. In the process of correcting errors, however, often the circuit judges tackle issues of national law which wind up making their way into the Supreme Court. This is sometimes referred to as the second function of the courts of appeals.

    In terms of policymaking, the courts of appeals make “law of the land” or what might be called regional law or policy on a regional basis. For example, the Fifth Circuit (of Texas, Louisiana, and Mississippi) might decide on a issue, like the use of race as a factor in law school admissions, whereby other regions or circuits might follow a different position, and it all stands as law of the land until the Supreme Court intervenes on the matter by taking up the issue in a writ of certiorari. Students of criminal justice often confuse “common law” and “law of the land” so hopefully this discussion helps clear up any misunderstanding.

    The courts of appeals strive for uniformity in a number of ways. One way is the so-called “screening” process which occurs in about 67% of cases which are disposed of without oral argument (Carp et al. 2004). Such screenings rely heavily on the work of many law clerks and staff attorneys, as well as numerous other forms of administrative help. Different yet similar cases are often consolidated into single cases in such screenings, resulting in more uniform decisions. A second way to achieve uniformity is the process known as an “en banc proceeding.” Sometimes, different three-judge panels, even those within the same circuit, can reach different or conflicting decisions. The en banc procedure eliminates this possibility by requiring, in important cases, that all the judges in a circuit get together to decide a case. In large circuits, this number is normally limited to eleven judges, due to the logistical problems of getting all the judges together.

The US district, or trial, courts are the workhorses of the federal judiciary. They are the only federal courts where attorneys examine and cross-examine witnesses. They are also the only places in the federal system where juries are used, both petit juries and grand juries. Federal rules call for twelve jurors in criminal cases and six jurors in civil cases. The Judiciary Act of 1789 created a system of thirteen district courts (reflecting the original thirteen states), and since then, the practice has continued of following state lines or state boundaries in setting up district courts. Congress is continually adding new district judgeships to the current total of 667, and the President continues to appoint lawyers with public service backgrounds to these federal judgeships. At one time, historically, it was common for a federal judge to hold a state office simultaneously.

Judges at the federal district level usually have their hands tied, so it is said, because of strict constraints on judicial discretion; e.g., federal sentencing guidelines, etc. This inability to make policy is sometimes referred to as their “norm enforcement” function (Jacob 1984). Norm enforcement decisions are intended to only apply to the particular case at hand, and do not ordinarily have any import for future decisions. However, occasionally a case comes along which is so new and different that it is obvious that even a district level decision will have policy impact. With cases of extraordinary importance (e.g., Roe v. Wade was such a case), sometimes the authority authorized under a 1903 statute will be exercised, and an ad hoc, special three-judge district court will be formed, and appeals arising from such courts go directly to the Supreme Court, bypassing the courts of appeals. In 1976, however, Congress virtually eliminated three-judge district courts, reserving them for disputes involving legislative reapportionment and certain issues of civil rights.

    So far, all we’ve been talking about have been Article III courts, which have been created by Congress pursuant to authority in that part of the Constitution. There are also Article I courts, such as military courts, bankruptcy courts, and FISC, a special, secret intelligence court set up in 1978 by FISA, the Foreign Intelligence Surveillance Act.. Sometimes an Article I court is called a legislative court, as opposed to a constitutional court. Article I courts tend to involve more quasi-administrative duties on the part of their judgeships. Article I judges don’t serve life terms, and have no protection against salary reductions.

    There are also US magistrates, who since 1968 have been assigned to deal with increased workloads in particular courts. A magistrate judge’s duties will vary from one jurisdiction to the next, but their decision making ability is usually limited (e.g., to jury or nonjury civil matters and/or criminal misdemeanors).

    Numerous law clerks also work in the federal judiciary, probably too many to count. Individual judges can always hire their own law clerks, and all appellate and some district court systems have regular slots for hiring law clerks. Law clerks who work for the Supreme Court play an important role in helping justices decide which cases should be granted a hearing via circulation of all the certiorari memos written up by all the clerks in what is called a “certpool.” Also and elsewhere, law clerks are involved in writing briefs and what are called “bench memorandums” that judges use during oral arguments.

Special courts also include the U.S. Court of Federal Claims, which handles monetary suits brought against the United States, and the U.S. Court of International Trade, which is authorized to hear and decide civil actions against the United States, federal agencies or their employees, arising out of any law pertaining to international trade. There is also one specialized federal appeals court -- the U.S. Court of Appeals for the Federal Circuit. This court has jurisdiction over appeals from all district courts in cases arising under patent laws as well as over appeals from the U.S. Court of Federal Claims and the Court of International Trade. The federal system also embraces a number of courts known as legislative or Article I courts, referring to Article I of the U.S. Constitution. Article I courts act pursuant to Congress' legislative powers and have the authority to decide factual questions relating to specific matters. Examples of Article I courts include the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Veterans Appeals, the U.S. Tax Court and the U.S. Bankruptcy Courts. Appeals from these courts may be brought to the U.S. Courts of Appeals.

Administrative courts mean that an agency will sit as a fact-finding tribunal in applying federal regulations. When disagreements occur, the parties present their evidence to an administrative law judge (ALJ), who acts as the fact-finder. Either party may appeal the judge's decision, usually to a board or commission established by the federal agency that issued the regulations. Because the ALJ has already served the fact-finding function that would normally be undertaken by a federal district court, appeals from rulings of major agencies (e.g., National Labor Relations Board or the Federal Trade Commission) are brought directly before the U.S. Courts of Appeals. Although such appeals may be brought in any circuit, as a practical matter the D.C. Circuit hears most appeals from federal agencies.

Finally, there are about 275 federally-recognized tribal justice systems in the U.S. on Native American lands. They do not use lawyers nor operate under an adversary system. They resolve disputes through a process of consensus achieved via the use of peacemaking, elder councils, or sentencing circles. The federal judiciary is also served by two other, extrajudicial organizations. The AO or Administrative Office of the US Courts has been in existence since 1939 and provides numerous services, from arranging for adequate supplies to be on hand to arranging for adequate accommodations to maintaining data on cases in federal courts. AOC also serves as an advocate for the federal judiciary system. The other organization of note is the FJC or Federal Judicial Center. Created in 1967, it is responsible for continuing education and research. Both organizations are known to employ graduates in criminal justice from four-year colleges and universities.

    No two states are alike when it comes to their court systems. Each state is free to adopt any organizational scheme it likes, create as many courts as it wishes, name those courts whatever it pleases, and establish their jurisdictions as it sees fit (Carp et al. 2004). State courts handle a wide range of criminal and civil law cases, often affecting the personal lives of individuals in such matters as marriage, divorce, accidents, injuries, and the like, but they also interpret state constitutions, not a simple matter in its own right (Tarr 1998). State constitutions sometimes provide broader and stronger guarantees of citizens’ rights than the federal constitution. Justice Brennan (1977) is generally credited with encouraging state courts to move in this direction, a movement called the “new judicial federalism” (Tarr 1998:165).

    The history of state courts is an interesting story of early American colonial distrust of lawyers and a colonial attempt to simplify English common law. English common law eventually prevailed, for the most part, but remnants of the early American colonial system survived, for example: in the tradition of nonlawyer judges (also called magistrates or Justices of the Peace) who fill many of the lowest spots in state court systems; the tradition of county courts as “seats of local government” (the heartland of America); and the widespread use of juries (a hallmark of state judicial systems). In the early days (prior to 1820), conflicts between state judges and state legislators were commonplace, with the judiciary often declaring many legislative act unconstitutional, and the legislators, for their part, often removing judges for political reasons. State courts have always had politics associated with them (i.e., as part of political patronage and part of city political machines). There have been many observations and comments on this, but Neubauer (1984) points out the crucial difference is that state courts emerged (as an independent force) in favor of creditors’ rights while state legislatures have traditionally been responsive to debtors’ rights.

    It is the consensus of most scholars (e.g., Carp et al. 2004) that state judicial systems in America were designed to handle the problems of a rural, agrarian society. They were not designed to handle the problems of rapid urbanization and massive immigration which hit America at the start of the 20th century. Yet, they had to expand (and continue to expand), and as Carp et al. (2004) put it, the expansion was unplanned and cities simply piled more courts (or specialized types of courts) on top of one another. Furthermore, jurisdictions overlapped, and for most of the twentieth century (and to some extent, still today), a lawyer’s “key to success” was knowing which court (and which judge) to take a particular case to.

    Modern state court systems and the associated court unification movement (which aims to cut down on the proliferation of different kinds of courts) tends to run foursquare against the tendency for states to create more and more specialized courts. Juvenile and family courts make up the largest group of these new courts, and some states (like Georgia, which has 159 of them) may have gone overboard on the creation of such courts. Other states have taken a different approach, cutting costs by simply lowering the age of transfer (or waiver) to adult court for juveniles. In Illinois, for example, the standard age of transfer is seventeen, but if the case involves murder, sexual assault, armed robbery, or a weapon on school grounds, the age of transfer drops to fifteen. It’s like that in many states nowadays. While some state judges are liberal in some places on some issues (e.g., civil unions between members of the same sex), most are predominantly conservative in ideology, as are many legislators, when it comes to implementing more “get tough” anti-crime measures at the state level, which are surprisingly easy for a state to adopt, if it wants to.

    State courts are usually organized into four tiers, or levels. At the bottom are trial courts of limited jurisdiction, with trial courts of general jurisdiction above them. The third tier, which doesn’t exist in all states, consists of intermediate appellate courts. The fourth and final tier, which all states have, consists of courts of last resort. Each of these are illustrated and discussed below.

State Courts of Last Resort: also called State Supreme Courts or High Courts that exist in all 50 states and typically have 5-9 justices who sit en banc (all together) and hear appeals from state courts of general jurisdiction or state intermediate appellate courts if the state has one; they have final interpretation on state law, and although technically, someone could appeal from this level to the U.S. Supreme Court, it rarely happens because few cases involve the Constitution or federal law.

State Intermediate Appellate Courts: exist in only 39 states to alleviate the burden on state courts of last resort; they have no trial jurisdiction and only hear appeals from state courts of general jurisdiction by reviewing trial transcripts and hearing occasional oral arguments; they have mandatory jurisdiction and must hear any legally appealed case; appellate judges usually sit in a panel of three to decide cases.

State Trial Courts of General Jurisdiction: variously called superior, district, or circuit courts, they consist of about 3,000 state-funded courts which keep transcripts and hold felony trials; when states create specialized courts, such as drug courts, mental health courts, or community mediation centers, they can exist at this level or at a lower level.

State Trial Courts of Limited Jurisdiction: variously called inferior, lower, city, municipal, country, or magistrate courts, they consist of about 13,000 courts most of which are funded by city or county governments (which sometimes mistakenly call them circuit or district courts), hearing traffic cases, ordinance violations, and criminal misdemeanors; no jury trials are held, and no transcripts are kept, requiring a trial de novo if an appeal is made.

These are the courts which handle most of the workload at the state level, about 85% of the workload, according to some estimates (Stumpf 1998). This is an impressive estimate since the state courts overall handle several million cases every year. They are “limited” to minor cases only, and are also usually “limited” in the punishments they can dole out. They are known by a variety of names: justice of the peace courts, magistrate courts, municipal courts, city courts, metropolitan courts, etc. The judges at this level are often not required to have a law degree. The courts at this level are also not required to be courts of record, which means that their proceedings are not recorded. Therefore, if an appeal is to result from a court of limited jurisdiction, there must be a trial de novo (new trial). In criminal justice matters, it is often the case that such courts are used in various pretrial stages, such as bail hearings and/or arraignments.

These are the courts which handle the major cases of criminal and civil justice. In criminal law, they are known as places which sentence most offenders to state prison systems, and in civil law, they are known as places where multi-million dollar lawsuits are settled. They also serve an appellate function in carrying out any trials de novo which result from appeals at the lower courts. Most states have establish prescribed places where such courts remain physically located, but in some rural states, judges still ride circuit in what are called districts or circuits. All states require judges at this level to have law degrees, and these are also courts of record. There are a confusing variety of names for the courts at this level: chancery courts, probate courts, circuit courts, common courts, criminal courts, district courts, probate courts, superior courts, etc.

These are relative newcomers to state judiciary systems, and about forty states have them, their basic purpose being to relieve the workload of a state’s highest court (Carp et al. 2004). Historically, their existence is owed to the uniquely American tradition that all parties in a case are entitled to at least one appeal. In many cases, they are the court of last resort for some parties. Judges at this level usually sit en banc or in rotating panels. The names for these courts vary: appeals court, appellate court, commonwealth court, court of appeals, etc.

Every state has one of these (Oklahoma and Texas have two), but only some states call them a state supreme court. They are best considered courts of last resort, or “final arbiters” in state law. Like their federal counterpart, such courts have discretion over which cases they will accept, and in many other ways, such courts try hard to emulate the US Supreme Court. They are usually located in a state capitol city, but not always. Amicus curiae (friend of the court) briefs are filed frequently by various interest groups in such courts on some matters. Written decisions make up the case law establishing much of the policy for each state.

The field of criminal justice has extensively studied the characteristics of judges and lawyers, i.e., such things as their backgrounds, their qualifications, their socialization in becoming judges, their selection, and their discipline. It should be noted that much of the literature in this area is poorly organized, both theoretically and empirically. For example, many studies in the field of criminal justice are usually little more than extensions of sensitizing concepts like the "courtroom workgroup" and/or well-worn discussions of matters like role conflict and extralegal factors in decision-making. Studies in the field of sociology are usually obtuse, most commonly approaching the subject from the vantage point of social stratification research, with judges automatically seen as high on some occupational prestige scale, serving as an "anchor" if you will for sociologists to carry out research on the relative prestige of other professions. There is a need for more direct examination of where judges come from, who they are, and what they do.

A distinction should be made between state judges and federal judges. Basically, state judges are more like ordinary people, and federal judges are more like nobility, coming from a narrow stratum of society where their fathers and grandfathers were usually judges, ambassadors, or the like (Carp et al. 2004). All judges everywhere tend to be well-connected politically, however, and the study of their political connections or relationship to politics may be a productive and fruitful approach to follow. Another possibly fruitful approach might be feminist, since working as a judge is almost exclusively a "man's game," especially so at the state level where there is often not much pressure to appoint women and minorities. Accountability is also different between the state and federal levels. Federal judges have lifetime tenure, the purpose being to, theoretically at least, allow them to become more independent. By contrast, only three US states bestow life tenure on state judges, and in all other states, the judges must appear on the ballot to remain in office (the ABA estimates that 80% of state judges face election at some point in their career). These introductory remarks aside, let's begin with an overview of the profession according to what the Labor Dept. has to say in its Occupational Outlook.

There are approximately 43,000 judges and magistrates in America. A bachelor’s degree and work experience are the minimum requirements for a judgeship or magistrate position, but most workers filling these positions usually have law degrees (except in the 40 states which don't require law degrees for lower court judicial positions). Judges preside over cases concerning every aspect of society, from traffic offenses to disputes over the management of professional sports to issues concerning the rights of huge corporations. They ensure that trials and hearings are conducted fairly and that the legal rights of all parties are safeguarded. Most of their work is done at the pretrial stage, listening to arguments and motions over evidence that may or may not merit presentation during a trial. Sometimes, they impose restrictions on parties until a trial is held. At trial, they decide on the merit of objections, and near the end of a trial, they carry out the important duty of instructing a jury (if one is present) on the applicable rules of law. After a trial, they impose sentences, or in a civil case, award relief. In some jurisdictions, judges also manage a court's clerical and administrative staff.

Judicial workers do most of their work in offices, law libraries, and courtrooms. Most judges wear robes while in a courtroom. Judges typically work a 40-hour week, but some are employed part-time and have other careers. Most judges have first been lawyers. Federal judges have lifetime tenure, granted via appointment by various federal agencies. State judges are either appointed or elected in partisan or nonpartisan elections, and state judges usually hold fixed, renewable terms ranging from 4 to 6 years or as long as 14 years or even life for some appellate court judgeships. Some places use nominating commissions to screen candidates for judgeships.

New judges usually have to go through some kind of orientation program, typically provided by one of the national support organizations like the FJC, AO, or some other entity associated with the process of continuing education. Training usually ranges from a few days to 3 weeks in length. About half of the states require judges to annually receive continuing education while serving on the bench.

Median income for a judge or magistrate is about $93,000 (2004 figures) with salaries ranging from lows of around $54,000 to highs of around $124,000. Of course, in some very small, rural areas of the US, it may not be unusual to find a judicial salary as low as $29,000 or so, but the top ten percent of judgeships earn well in excess of $140,000. Justices on the Supreme Court earn at least $200,000, and of course, among federal judges and magistrates only, the median income is $160,000 (2004 figures) with salaries ranging from lows of around $149,000 to highs of around $171,000. Benefits include paid health, life, and dental insurance; pension plans; judicial immunity protection; expense accounts; vacation, holiday, and sick leave; and contributions to retirement plans made on their behalf. Many states also have judicial compensation committees, which recommend and award annual increases in salary, and states without commissions often have statutes which link regular increases in judicial salaries to increases in the Consumer Price Index or something like that.

Unlike other countries, the US has neither a career judiciary nor extensive training programs for becoming a judge. At the state level, women judges can be found, but ordinarily, they are at the lower courts level. According to some 2001 figures provided by Carp et al. (2004), 89% of state high court judges were white, 7% African American, 2% Hispanic, and 2% Asian American. A slight majority (52%) were Democrats. The most common political office held before becoming a judge was as a prosecutor. There are five routes to becoming a judge: partisan election; nonpartisan election; merit selection; gubernatorial appointment; and appointment by a legislature. These are all summarized below by the states which utilize each method.

A word or two is appropriate about the above table of information. First, it should be noted that even in states which use "nonpartisan" elections for most judgeships, in that same state, there may be a "partisan" election for the highest seats on the bench; i.e., judgeships on the court of last resort. This is the case in North Carolina, for example, where nonpartisan elections are held for seats on lower courts, but partisan elections are held for seats on the highest court. Similarly, there are states which switch around the processes of gubernatorial and legislative appointment; e.g., Rhode Island, which uses merit selection for its top judges. Secondly, it should be noted that even in a "nonpartisan" election, it is often no secret to the voters about which judges are Democrat and which ones are Republican.

The election processes for judges have been heavily studied (Abbe & Herrnson 2002). Campaign costs are expensive, and concerns arise over the source of campaign funds, particularly from lawyers with business before the court in which the newly-elected judge would be sitting. Interest groups also make donations, such as labor unions, business organizations, and victim advocacy groups. During campaigns for office, most judges do NOT speak out on policy issues, but some do. The pattern is for judges to launch a "low key" campaign focused primarily on their qualifications and "fairness."

Merit selection is known in criminal justice circles as the Missouri Plan (named after that state which in 1940 first developed the scheme). States with Missouri-type plans use a combination of elections and appointments. The way it works is as follows: the governor appoints a judge from several candidates recommended by a nominating commission or panel, and then after a wait for about a year or so, the appointed judge must stand for a retention election. What the voters see on their ballot is something like "Should Judge X be retained in office?" A simple majority of votes either way (Yes or No) determines the tenure of the judge. It is a plan to take politics out of the process, but in some states, during some retention elections, vicious attacks and counterattacks can play out during the process. However, the gubernatorial appointment procedure is known for producing the most political hacks (Carp et al. 2004).

Almost without exception, criminal justice scholars (e.g., Allen & Wall 1987; Spohn 1990) have been interested in the issues of gender and racial diversity on the bench. It is often thought that by increasing this diversity, then there would be social benefits to minorities in society, but the result has been that where such minorities become seated on the bench, their rulings and decisions tend to be quite similar to the rulings and opinions of white male judges.

Throughout history, the primary way of removing a judge was via "impeachment," which involves legislative investigation into some alleged impropriety. Recall elections are also held in some states. However, the most common method in contemporary use is to use retirement plans to force early retirement (the state warns that if the judge doesn't retire soon, they may lose their retirement benefits). Policing the judiciary remains a challenge for most state governments.

A good beginning question to ask is why do we have trials in courthouses? After all, the technical definition of a "court" is anyplace where disputes are settled. However, societies have come to invest heavily in the size and stature of their courthouses. Courthouses are designed to be places of awe and majesty, intentionally presenting the appearance of justice (Rubin 1976). Socialization and ideology have reinforced this appearance, so we think of courthouses as sacred grounds where nothing but truth and neutrality prevail (Wice 1991). However, the study of "law in action," a tradition of jurisprudence called legal realism which goes back as far as Roscoe Pound (1870-1964) and continues up through Frank (1949) requires that we look beyond the myth and facade of neutrality.

Judges are human, with human failings. Most Americans (85%) say that judges are honest, but the Center for Judicial Conduct Organizations estimates that every year, 12 judges have to be removed from office for misconduct, another 80 are publicly censured or admonished, and another 150 are privately censured or admonished. The problem of judicial misconduct exists at all levels. It doesn't happen, but the Constitution doesn't prohibit the President from nominating someone for a federal judgeship without a legal education or experience as a practicing attorney. All federal judges are appointed for life, and can only be removed via impeachment. In addition, Congress cannot lower or modify their salaries. At the state level, the vast majority of states hold elections to select judges. Half of these states hold "partisan" elections, which requires the judge to identify with a political party and raise campaign money. The other half hold "nonpartisan" elections which attempt to restrict political influence. Another eighteen (18) states use nominating commissions, but most combine them with a general election that gives voters a chance to retain them in office (the Missouri Plan). Four (4) states allow their governor or legislature to select state judges. Most state judgeships are for a period of 6-8 years. No law degree is required for some lower court positions. No one method of selecting judges has been found to ensure that judges are fair and honest. It is not uncommon for judges to accept campaign money from attorneys who practice before them, and this should be considered a violation of the Model Code of Judicial Conduct, but that Code must be vague in principle or application.

A judge has many roles to play. In the early phases of a trial, the judge acts as a negotiator, and most pretrial decisions are reached by conferences held in the judge's chambers. These pretrial decisions are often critical, yet the most secretive part of a justice system. As the date approaches for trial, the judge acts as an administrator, and must handle the calendar of cases, called a courtroom docket. This not only schedules the trial, but manages the paperwork and time that various courthouse employees must put in on the case. Most judges have staff personnel assigned to help them, and a few courts have special professionals known as court administrators who handle budgets as well as case flow. At the trial, the judge acts as a referee and teacher. They are expected to be an impartial referee between the two opposing sides of a case. They are not supposed to be too closely interested in the facts of a case, but in how legal (and ethical) each of the two sides are behaving. For this reason, it is sometimes said the judge is a trier of law. Throughout the trial, and especially at the end, the judge acts as teacher for the jury (a jury is sometimes called the trier of fact), explaining complicated points of law to the jury, and at the end, giving them an hour or so mini-lesson in law before the jury deliberates on a verdict. This mini-lesson in law is called the jury instructions, and a judge must be very careful with these so as not to suggest the jury vote a certain way, but also inform them of what evidence needs to be weighted more heavily.

A common ethical issue that judges face in their everyday work involves discretionary decisions regarding application of the exclusionary rule. A judge must personally decide if an error committed by police (and there are almost always errors) is serious enough to trigger suppression of evidence. If judges adopted a "hypertechnical" by-the-rules approach in stringently applying the exclusionary rule, perhaps no one would ever get convicted of a crime. If judges are too lax in enforcing the exclusionary rule, chances are that innocent people might get convicted. Pizzi (1999) also makes the point that the exclusionary rule is a manifestation of the "adversary mentality" that grips American judges and lawyers.

Another common ethical issue for judges is in the area of sentencing. Many new judges are not trained in this, and so they develop an on-the-job philosophy, formulated hastily, or else they conform to whatever is the "going rate" for punishments set down by their predecessor. There is a remarkable lack of consistency between judges in the same jurisdiction, however. Most attorneys know that "judge shopping" will result in finding a harsher or more lenient judge, whichever is needed. It may very well be that judges differ on their sentencing patterns for justifiable reasons, but it has long been suspected in criminal justice that variation of this kind is probably most likely due to extralegal, personal reasons like religion, racial or gender bias, age discrimination, or former experience as a prosecutor (e.g., Spohn 2002). Sentencing disparity is a serious problem, and the system is rife with it. The following are some negative effects of disparity:

An adversary system has four basic components: (1) a neutral decision maker, either a judge or jury; (2) rules on the presentation of evidence; (3) rules about the procedures to be followed; and (4) two sides opposing each other where there is only one clear winner. The assumption, and admittedly it's a big assumption, is that in this setting, truth will emerge as a by-product of opposition between two intensely partisan sides, each of whose goal is to win. For what it's worth, the adversary system is considered better than most alternatives, particularly compared to what is called the inquisitorial system used in many European and Asian countries. Preservation of the adversary system as it now exists is a conservative force in America that severely limits the chances for legal reform, and its preservation is intended to prevent the possibility of ever becoming an inquisitorial society. Let's take a brief look at what an inquisitorial system really looks like, as Pizzi (1999) has done, to see what it is that American lawyers are so frightened of. Every year, American law schools graduate thousands of students who are woefully ignorant, among other things, of the trial systems in countries other than the United States.

Netherlands -- Like all so-called "inquisitorial" countries, the basic element is an investigative file assembled by the police and other authorities. This file, or document, is studied by the judges prior to trial, and is freely available to the defendant, defense counsel, and prosecutor. The file is assumed to be the evidence in the case, and parties are only called to testify about the substance of what is in the file. There are no penalties for perjury, and the parties can say pretty much what they want about what the file shows and doesn't show. At the conclusion of the trial, a panel of three professional judges then deliberate, although sometimes one of the judges is an academic or civil servant. There is no separate sentencing hearing. All that happens is that the three judges render their sentence and explain how they arrived at their decision; e.g., how any legal issues that arose were decided; how any conflicts in evidence were resolved; and why the sentence is appropriate. The whole process usually takes no more than two weeks. There is an appeal process, but again a panel of three judges must unanimously agree on appeal. The whole system is quite informal, and open rather than secretive over precisely the points that have plagued American justice.

Germany -- Again, an investigative file is used, and a panel of five judges usually try a case, three of these judges being professionals, and two of these judges being "lay judges" who are elected from the community by the voters. The lay judges are not allowed to see the investigative file. One of the professional judges, who has read the file, handles all the questioning at trial (a joint prosecutor-judge role). The defense attorney must then try to get one of the other judges to agree upon a defense line of questioning. Witnesses are called in any order that makes the most sense, so there are no sharp demarcations between the prosecution's case in chief and the defense case in chief. Whichever side get the majority of votes among the judges (a 3-2 decision) wins the case. Again, the judges explain their verdict, and issue a written document, which becomes the basis for appeal, which almost always requires looking at any alleged errors in the trial process. The whole system is quite different from the hypertechnical rules which have plagued American justice.

Norway -- This country uses a two-trial system. Everyone gets two trials, in case the first one was unfair. It should be noted that this method is an emerging standard under International Covenants. Because there are two trials, there is a strong incentive to keep things simply and least costly. The right to a jury is available, but juries are used in interesting ways. A jury will consist of ten people where a verdict requires a vote of seven. A panel of three professional judges exist, and these judges have considerable power over the jury, for example, by summarizing the evidence for them. Verdicts are not simply "guilty" or "not guilty" but consist of special verdicts in response to questions put to the jury by the judges. At sentencing, four of the jurors are kept on (the rest dismissed) and along with the judges decide an appropriate sentence. The whole system is innovative, as opposed to American justice where about the only innovative thing in years has been the "cameras in the courtroom" issue.

Some of the most interesting questions in the study of judical process involve asking how independent a judiciary can be if the executive branch influence is oriented toward appointments (some would argue, rightly so) of judges and justices who (deliberately or just happen to) share the executive's policy-making viewpoint or personal and political philosophies. This is, of course, commonly known to go on, but do executives "stack" the bench when it comes to judicial appointments? Is the Senate an adequate balance of power for this? Does political party affiliation "spill over" as a proxy for shared ideology? Do judges even have ideological tendencies? It is apparent that an unchecked judiciary can fairly easily accomplish ideological goals, if they wanted to, on social issues that strongly affect the national agenda (e.g., affirmative action, immigration, campaign finance, federalism, the rights of criminal defendants, sex, race, and disability discrimination, corporate privilege, distribution of wealth, property rights, capital punishment, and abortion, to name a few). It is therefore important that we must study this as more than a branches of government problem; as nothing less than the study of Executive-Legislative-Judiciary policy links.

Contrary to the thesis that political controversies over judicial appointments are a relatively new phenomenon, it is more factual that political clashes over nominees have always existed (Epstein & Segal 2005), especially at the upper court levels (Epstein & Segal reporting that no more than 20% of lower court nominations generate any opposition). The way it works is the way the framers of the Constitution set it up -- the President has the power to appoint, and the Senate has the power to approve -- this being called the "advice & consent" role of the Senate). It should be noted that this is a distinctively American approach, as in most other countries around the world, a kind of "shared power" procedure is followed where the executive branch gets to appoint judges for about half of the vacancies and the legislature (or parliament) gets to appoint the other half. However, even in such non-American arrangements, there are still controversies, with different political parties in the legislature usually vetoing each other's candidates, resulting in the usual solution that half the judicial slots go to one party and half to the other. In the United States, during every two-year session of Congress, the Senate is called upon to approve about 4,000 civilian and 65,000 military nominations. The Senatorial advice & consent mechanism is described below.

The Advice and Consent Role of the Senate

The advice & consent role of the Senate is an integral part, perhaps the most important part, of the system of checks and balances and the conception of balance of power that the founding fathers envisioned for American government. Article II, Section 2 refers to the Senate's role in the signing and ratification of treaties as well as the appointment of public officials. It was never envisioned that by simply requiring the President to gain the advice and consent of the Senate that the business of government would be hindered in any way. Toward this end, President George Washington (and many subsequent Presidents) downplayed the "advice" function, believing that the Senate primarily played a role in the "consent" function after a nomination had been made. Over the years, several other Presidents emphasized the "advice" function, consulting informally with Senators before a nomination was made. Other Presidents have made use of the power to make "recess appointments" when Congress is not in session. This generally is done to seat a controversial figure, but any such appointment must be confirmed by Congress before the end of their next two-year session. Some Senators take the view that they should be consulted beforehand whenever an appointee is being considered, particularly the Senate Judiciary Committee, which is involved in "vetting" nominees or making sure no skeletons in the closet exist (ideological screening as well as questioning formal credentials, like rank in law school graduating class and number of law review articles published). However, in practice, most Senators accept the historical and Constitutional inevitability that their advise & consent role is reactive rather than proactive, and most Presidents inform whomever they want proactively. A simple majority of votes among Senators is needed to confirm a nominee, but a minority or even an individual Senator can filibuster (obstruct a vote by taking up time with a long speech), although under Senate rules -- which can be changed by excercising the so-called "nuclear option" which changes the number of votes needed to change Senate rules from a two-thirds "supermajority" (67) to a simple majority (51) -- there are procedures for "cloture" (ending debate within 30-100 hours) when three-fifths (60 with no Senators absent) of the voting Senators decide. [Time Magazine article on filibusters; Famous Filibusters in History]
Another American part of parliamentary law deserving of note is the custom of the "blue slip." A blue slip is the traditional method of allowing the home state senators of a judicial nominee to express their approval or disapproval. Blue slips are generally given substantial weight by the Judiciary Committee in its consideration of a judicial nominee. The process dates back several decades and is grounded in the tradition of "senatorial courtesy," which traces its roots back to the presidency of George Washington. The concept of senatorial courtesy has multiple meanings, the most relevant being the idea of "senatorial trust" whereby given the age and citizenship qualifications for Senate are more stringent than those for the House of Representatives, senators should theoretically be deferred to more by an executive. In Federalist No. 62, Madison points out that the Senate, due to its greater stability of character, should be granted more access to information and other matters of executive mind. George Washington referred to the Senate as the place where a President can expect cooler heads to prevail.

Carp et al. (2004) present a theory of judicial appointments which holds that the following are ways a chief executive can influence a judiciary, or at least get one that is sympathetic:

Studies of voting patterns can be found in abundance on the Internet or in much of the literature (see Pinello 1999 for a meta-analysis). In general, "liberal" judges (as opposed to conservative ones) are usually characterized by two or three tendencies that adequately (but not comprehensively) characterize liberal judicial ideology: sympathy toward arguments by criminal defendants that government officials had acted improperly; special benefits or consideration for minorities, working people, and economic underdogs; and a desire to see freedoms in the Bill of Rights extended or expanded in interpretation. Sometimes executives get the judges they want and subsequently have an immediate (and sometimes lasting) impact on changing the course of social policy, and sometimes an executive gets "turncoat judges" despite their best efforts at making ideological appointments. Political compromise and deal-making characterize the process of judicial appointments, and may do so in a way which ensures more (or a different type of) checks and balances than originally envisioned.

Many parties (litigants) take cases before the courts (potentially any and all individuals or groups in society), but interest groups are a special case, and deserving of more scrutiny since they are known for their attempts to pursue policy goals (via influence on the courts), and in some cases, to directly select or promote a candidate for nomination and election. The meaning of the term "influence" usually encompasses lobbying, bargaining, or persuasion, but modern interest group activity more closely resembles the kind of sophisticated information operations or PSYOPS carried out by top-notch intelligence agencies. Interest group activity is all around us -- on billboards, radio, TV, emails, magazine and newspaper ads, etc. Sometimes the goal is to "saturate" the media with some hot topic (where a "favored" candidate is known to side on). At other times, the goal is to avoid media coverage of some topic (vulnerabilities of candidates). At still other times, the goal is to counter public perception of something that some other group has countered with, and so on ... (well, you get the idea).

The judiciary component of a justice system is caught up in all this. Estimates by the Christian Science Monitor put the amount of spending on the "spin" associated with any one Supreme Court vacancy at $40 million. An entire industry of consultants and media gurus exist who will, if they don't have anything better to do as part of the "permanent campaign" force of some politician, accept work on behalf of interest groups who have a stake in Supreme Court battles or some other judicial confirmation. It is also the case that politicians running for reelection sometimes try to obtain free publicity and visibility by being outspoken in some way regarding judicial appointments. Further, political action committee contributions (the best proxy for lobbying) by lawyers and legal firms runs about $4 million a year.

Basically, there are four kinds of organizations for which we need to become familiar with, as shown below. Large-scale interest groups or coalitions, like MoveOn.org will consist of suborganizations of each type (e.g., MoveOn is both a 501(c)(4), a PAC, and a 527 organization).

Cooper (1988) makes the clearest distinction between the kinds of cases a judge is called upon to resolve. He states that some disputes (which can be called "private law") involve a private citizen or an organization suing another citizen or organization; in other words, the litigants involved are private parties, with resolution of the dispute having little or no consequences for society as a whole. He then states that there are other cases (which can be called "public law" cases) where a citizen or organization claims that a government agency or official has violated a right, the resolution of which is not ordinarily compensatory (as it is in private law), but policy-oriented, aimed at changing the way government operates.

It should be immediately noted that sometimes private law cases also have an impact on society, or at least the changing of business practices. A good example is the 1997 $31 million case litigated by former US senator John Edwards of North Carolina which involved a five-year-old Raleigh girl who got stuck on the drain of a wading pool after another child had removed the drain cover. Such a powerful suction was created that much of the girl's small and large intestines were sucked out, and she has to spend about eleven hours a day attached to intravenous feeding tubes for what remains of the rest of her life. The drain manufacturer settled once it was apparent to the jury that Edwards had adequately represented his client. Not only did the family win in this case, but the state of North Carolina changed its laws regulating swimming pools, and Edwards went on to point out the case was representative of widespread business antipathy toward working people.

Damages are normally settled in terms of being compensatory and/or punitive (from a business viewpoint, compensatory damages are insurable while punitive damages are not). Compensatory damages are intended to make a person "whole" again, and punitive damages (also called exemplary damages) are awarded in order to "reform or deter" similar persons from pursuing the course of action which damaged the plaintiff. The general common law rule for punitive damage is that the conduct should be especially invidious (oppressive, arbitrary, cold or calculated), but judicial restraint (outside of a legislatively-imposed cap) is expected to "cap" any such awards, subject to limitations imposed by the due process clauses of the Fifth and Fourteenth Amendments. Other kinds of damages include but are not limited to: restitutionary (profiting from a wrong), nominal (very small award for a technical wrong), and economic (the economics-calculated financial loss suffered from an accidental wrong). Tort reform, incidentally, can be seen an effort to limit ("cap") damages for intangible harms such as "pain and suffering" and is mostly addressed to the problems with medical malpractice cases.

Many public law controversies involve the government, and such cases are usually found in the appellate courts and the Supreme Court. Private law cases are usually settled at the trial court level because litigants find it more profitable to settle their cases early in such courts. Public law cases involve more than just settling for some dollar figure, however. Public law cases usually involve the seeking of publicity and/or public awareness of the issue, and that's where interest groups come into play, pursuing cases (often at great expense) up through the court hierarchy in order to make a point. Many interest groups have found that the judicial branch of government is the easiest branch of government to make their point, since it's usually cheaper than the lobbying costs for influencing the legislative branch and/or making (often futile) campaign contributions to those running for executive office. For example, the NAACP (National Association for the Advancement of Colored People) long ago realized the need to switch from a strategy of legislative influence to one of judicial influence. This was during the civil rights heyday in the 1960s when civil rights-related filibusters were frequent in Congress. Founded in 1966, NOW (National Organization for Women), and (founded in 1968) MALDEF (Mexican American Legal Defense and Education Fund) were two other organizations which quickly realized the value of the judiciary as a forum for its interests. Ralph Nader is also credited with spearheading a Sixties movement which led to creation of many legal aid clinics (although this has a long history, first in 1876 when the German Society of New York formed America's first legal-aid organization), "public interest law firms," and organizations like Public Citizen and the Center for Study of Responsive Law. The ACLU (American Civil Liberties Union), however, is probably the most well-known organization which has sponsored the most public law cases in court (Walker 1991). Most such organizations can be easily found on the Internet (and I apologize if I neglected listed them all in the Internet Resources). Suffice it to say that the era of lawyers as "hired guns" may very well be coming to an end; far more prevalent (and growing) is "cause lawyering" (Scheingold & Sarat 2004) where moral convictions are not put aside. One should be aware that many fascinating ideological battles are taking place in the public law arena between conservative groups (called the "freedom-based movement") and liberal groups (called the "public interest movement").

As Carp et al. (2004) point out, there are two (2) principal tactics that interest groups use: (1) test cases; and (2) amicus curiae briefs. What these authors don't get into is that the conservative movement has been more successful at the latter, while liberal groups have generally been more successful at test, or "landmark" cases (those which get written up in textbooks). Sometimes both tactics are used simultaneously. Let's explore these two tactics in some detail.

The history and purpose of amici curiae are somewhat debatable. The original role of an amicus was that of a neutral bystander, someone without a stake in the outcome, who offered information to the court gratuitously, just to help the court avoid error. Over the years, the function has changed (from neutrality to advocacy), but the name has not changed. Sometimes, judges will refuse to receive such briefs on these historical grounds (where the writers are not "neutral" enough). Virtually every amicus filed today hopes to advance its own interest by helping one party or another win the case, and this trend has been embodied in modern court rules which typically require amici to identify the party to the case on whose behalf they wish to argue.

Despite the judiciary system's influence on our society, it has been called a "hollow hope" in thinking that the solutions to many social problems are to be found in the courts (Rosenberg 1991). Sometimes a court's decision must be enforced by other branches of government; e.g., by police officials or special warden "masters." Courts often have to use more than legal power to implement policy; they have to use other powers. As Feeley and Rubin (1998) note, the Supreme Court has in recent years sustained the claims of nonsmoking prisoners who wanted to be protected from secondhand smoke as well as the claims of preoperative transsexual prisoners who wanted to be protected from fellow prisoners. What goes on in the judiciary branch of government touches the lives of every American in some way. It is the case that the judiciary ought to be seen as a policymaking branch of government, not some inert bureaucracy which simply follows precedent and dispenses case law.

Burke (2002) has probably best captured a picture of what the future looks like in terms of litigation. Books like The Litigation Explosion and The Death of Common Sense: How Law Is Suffocating America have in recent years found a popular audience. Advertising by business groups suggests that excessive litigiousness is limiting access to doctors and closing down parks and playgrounds. The media dramatize the negative effects of litigation with an array of lawsuit horror stories and overwrought pronouncements. In television sitcoms such as Seinfeld, The Simpsons, and Ally McBeal overzealous lawyers and greedy litigants are portrayed pursuing outrageous claims. Meanwhile in academia, second thoughts about the use of litigation to promote social justice proliferate. Litigation is criticized as ineffective. Conservative think tanks have found it costly, and communitarians find it divisive. Even among jurists there is "failing faith" in adjudication and greater attention to encouraging settlement and alternative means of resolving disputes.

On the other hand, faith in judicial process seems to be improving internationally. The growth of judicial review, the ability of courts to strike down government actions as unconstitutional, and the development of transnational judicial institutions, especially in Europe, have been strong, recent developments noted by scholars who see a growing role for courts across the globe. Whether this growth will filter down into nonconstitutional domains, such as injury compensation, remains an open question. See C. Neil Tate and Torban Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995).

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Last updated: Sept. 28, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.

Majority but not unanimous opinion (5-4)(6-3)(7-2)(8-1)	52% of cases	Concurring and Dissenting opinions written
Majority unanimous for whole opinion (9-0)(0-9)	28% of cases	Majority opinion written; no dissent
Majority unanimous for part of opinion (0-9)(1-8)(2-7)(7-2)(8-1)(9-0)	12% of cases	Concurring opinion written but dissent noted on part of opinion
Majority for only part of opinion (0-9)(1-8)(2-7)(3-6)(4-5)(5-4)(6-3)(7-2)(8-1)(9-0)	8% of cases	Dissenting opinion written but still concurring with majority on part

*Methods of Judicial Selection*
Partisan election	Alabama, Arkansas, Illinois, Indiana, New Mexico, New York, Pennsylvania, Tennessee, Texas, West Virginia
Nonpartisan election	Arizona, California, Florida, Georgia, Idaho, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Washington, Wisconsin
Merit selection	Alaska, Colorado, Delaware, Hawaii, Iowa, Kansas, Maryland, Massachusetts, Missouri, Nebraska, Utah, Vermont, Wyoming
Gubernatorial appointment	Maine, New Hampshire, New Jersey, Rhode Island
Legislative appointment	Connecticut, South Carolina, Virginia