Article III of the Constitution tells us that judges will hold their positions during “good behavior” and that they will receive “compensation.” Beyond that, however, the Constitution tells us very little about members of the judiciary. There are NO specific qualifications listed for federal judges in Article III. To find how judges are chosen, we must look to Article II.
Article II of the Constitution tells us that the president
“. . . shall nominate, and by and with the advice and consent of the Senate shall appoint . . . judges of the Supreme Court . . .”
Making judicial appointments is one of the most important jobs of the president because members of the judiciary hold their seats for life. Most presidents have a chance to appoint at least one Supreme Court Justice during their time in office, in addition to making many appointments to the lower federal courts.
Because Article II tells us that the “consent of the Senate” is needed to appoint judges, we know that the president must consider the Senate when making his choices. Most of the work in the Senate today is done in committees. The Senate Judiciary Committee is one of many permanent standing committees in the Senate. It has the job of investigating judicial nominations, and making recommendations (to the full Senate) about whether to confirm these nominees or not.
When asked to provide suggestions for district court appointments, the president generally looks to the senators from the state where those nominees will preside, though anyone can make a recommendation to the president. The senators of these states may look to their state bar association for recommendations, as well as talking to friends, lawyers, and other state officials, to get ideas about who to recommend. After some research, senators recommend their nominee to the president.
For appointments to the Court of Appeals and United States Supreme Court, the president may take recommendations from the members of the lower courts on the federal level, and may also look to judges from the state supreme courts, elected officials, legal scholars or practicing lawyers from around the nation.
Choosing a nominee is only the first part of the process for a president. After his choice his made, the nomination moves on to the Senate, where the Judiciary Committee will begin the confirmation process.
Once the president has chosen a nominee, his or her name will be sent to the Justice Department and Federal Bureau of Investigation. They do a formal background check on the nominee to make sure that person is suitable to be a federal judge.
If the nominee makes it through this first step, the nominee will then go before the Senate Judiciary Committee.
The Judiciary Committee asks nominees to fill out a questionnaire asking for information on their background. It also looks into the nominees decisions on past cases (if they are already a judge), and any books or journal articles they may have written. These writings give the committee a sense of who the judge is, what they believe, and if they can be fair and unbiased in their interpretation of the Constitution.
Members of the Judiciary Committee often meet with the nominee face to face as well, and eventually hold hearings in which they try to determine if the nominee will be a good judge.
Senate Judiciary Committee hearings are public, and often involve the testimony of the nominee as well as those who know them, or who have worked with them in the past. When the hearings are finished, the committee sends the nomination to the floor of the Senate for debate and a vote.
The original Missouri Constitution, written in 1820, allowed the governor of the state to appoint judges, who were then subject to confirmation by the state senate. This system mirrored the federal system, but was changed in the 1830s and 1840s as the people began to seek popular election of judges. The state constitution was amended in 1848, with the first judicial elections being held in 1850.
Today, popular election is used in most of Missouri’s counties (40 of the state’s 45 judicial circuits). In the remaining judicial circuits (primarily in the St. Louis and Kansas City areas), the 3 districts of the Missouri Court of Appeals and the Missouri Supreme Court, the judges are chosen under the Missouri Non-Partisan Court Plan.
The Missouri Non-Partisan Court Plan was adopted after problems began to emerge in partisan elections for judges in the major cities. To curb corruption, citizens, business and civic leaders, and Missouri lawyers began to lobby for a change. The result was the creation of the Missouri Non-Partisan Court Plan in 1940.
The Missouri Plan created a judicial commission made up of citizens, lawyers, and a judge. It is the job of this commission to select judicial nominees from those who have applied for the open positions. These nominees must meet certain constitutional requirements in the state (for example a Missouri Supreme Court nominee must be at least 30 years old, licensed to practice law in Missouri, have been a U.S. citizen for at least 15 years, and qualified to vote in the state for 9 years before being selected).
Once the nominating commission has made its choices, it forwards the names of three proposed nominees to the governor, who then chooses the judge to fill the judicial vacancy. The judge will serve on the court for at least a year, after which the people get to vote to either retain them, or remove them. This is called retention, rather than election.
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Federal judges are appointed by the President and are subject to confirmation by the House of Representatives.
