Judicial Term v. Appointment

In California recently, a judge decided to take “God” out of the American Pledge of Allegiance. Soon thereafter, another judge in Massachusetts decided to redefine marriage so that what was traditionally a union between one man and one woman may now be formed between two people of the same gender. Are these brave acts of courageous individuals, or simply activists asserting their personal opinions into a cultural debate? Does the method of selection and retention give them the independence to insert their opinions into their rulings? Today, there is a cultural debate concerning if the judges’ method of obtaining office contributes to the way they perform their roles in the judicial system.

One procedure for filling judiciary positions in the United States is legislative or executive appointment of individuals. Similarly to the way college professors cannot be dismissed after they receive tenure from teaching, researching and publishing for an extended period of time, appointed judges hold their positions for life. There are several problems that arise from appointing individuals to lifetime offices. When someone is designated to fill a decision-making capacity that has no ultimate termination, then they have no accountability whatsoever over their actions. He or she can act as they wish without fear of removal from office. The opinions of the citizens hold little or no value in their estimation. Furthermore, because citizens do not have input concerning who are their arbiters, the appointments may be based simply on connections with those high in political power, rather than the actual qualifications of the nominee. As a result, the product of these appointed judges is not held to a high standard, and thus the caliber of decision-making significantly decreases.

Although there are many flaws to the appointment system, there are benefits derived from it as well. Generally, lawyers in established private practices are settled in the comforts of their high and steady income, and do not wish to leave such security for the lesser and unguaranteed wages of the campaign trail leading to the judiciary. However, when individuals are appointed, there are no risks of losing their positions when they run for reelection or are removed from office. Judges under appointment receive judicial independence, which basically means they are unanswerable to a vocal majority of citizen voters and have the potential, if they are willing, to protect the rights of the disfavored minority groups.

Citizens are able to elect the judiciary to terms of office in some states as another means of selecting judges. There are both pros and cons to this process as well. One major downfall is what may be called the “name game.” While some states place Republican or Democrat on the ballots beside each candidate’s name, many judicial elections are non-partisan, which means that candidates cannot campaign under the emblems of the donkey or the elephant. Rather, they are forced to get their names out and appeal to the maximum number of voters possible in order to succeed, making their campaigns much more difficult. Some people vote based on the familiarity of the name (for example, people with the same last name as a former governor or state legislator, or even just common names such as Smith and Jones) or the gender of the candidate. In many cases, these unfortunate facts entail that people with unusual names will not win, and women are increasingly more favored than men. Also, because candidates are forced to campaign to attain judicial office, their risks (such as losing their job, decreasing their income, etc.) increase, and it becomes less and less likely that qualified and capable individuals will run. These risks are also raised after the judges are elected into office as they are forced to submit to the public’s dogma, forgoing their own personal judicial philosophies in order to remain in office. If they fail to comply with the predominant views of the citizens, then they face the possibility of losing their reelection campaigns and ruining future political pursuits in addition to losing the popular public opinion.

Despite these initial difficulties, there are many favorable aspects of the elected judiciary process. Rather than allowing activist judges with no accountability to make assumptive decisions about important issues, by electing the judiciary, the judges automatically become accountable to their electors. If they make radical decisions, then they will reap stringent consequences at the hands of the citizens who elected them. One of the most important reasons for the promotion of the elected judiciary is the equal opportunity for selection that it provides. As the United States Constitution claims that “all men are created equal” and that the goal of America is “life, liberty, and the pursuit of happiness,” opportunities to run for office and to be elected by one’s fellow constituents should indeed be highly favored. Even if a candidate has no connections high in the political spectrum, they have a chance to spread their name and their judicial philosophy throughout their electoral area, and in so doing have a chance at success and superiority regardless of their humble beginnings.

While some would argue that appointed judges are preferable to citizen elected arbiters, they fail to realize that, via the campaigning and election process, people are able to provide input into who governs them and in the way the laws are interpreted. Justice Paul Newby, a current North Carolina State Supreme Court Associate Justice, would probably have never attained his position without the citizen-elected judicial system in his state. A federal attorney who was tremendously involved in his church, community, and the lives of his family members, Justice Newby had no prior political experience. He began his campaign with the desire to counter judicial activism with conservative interpretation of the law. Because of his comparative obscurity, Justice Newby undertook a statewide campaign in which he spoke to a wide variety of civic and religious groups in an attempt to make voters aware of his character and judicial philosophy. He stressed the importance of character and values among candidates, and miraculously won his race. He proved in many ways the importance of voter input into political races, and virtue of working hard to achieve position rather than having it given because of the proper political connections.


In conclusion, while many legislators and executives contend that judicial appointment is the best way to fill court offices, it benefits the citizens for the judges to be elected by voters other rather than by governing individuals. As is seen through Justice Newby’s example, the latter view of the judiciary is in accordance with the purposes of the United States Constitution. It seems more appropriate in a democratic government that judges are held accountable to other people during their terms of office rather than being allowed to insert their personal agendas into court decisions. As a result, more judicial vacancies should be filled in compliance with the majority will of the people, rather than the minority will of certain individuals or governing bodies.