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Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure

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Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure JUDICIAL SELECTION AND DEMOCRATIC THEORY: DEMAND, SUPPLY, AND LIFE TENURE Judith Resnik* ABSTRACT How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate- with the advice and consent of the Senate-life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies debate the legitimacy and wisdom of various methods used to endow individuals with the state's power of adjudication. This diversity of techniques for judicial selection illuminates the complex relationship of adjudication to democracies. Democracy tells one a good deal about rights to justice, equality before and in the law, and constraints on the power of the state, its courts included. But absent a claim that all government officials in a democracy must be elected, it is difficult to derive from democracy any particular process for picking judges. In contrast, democratic principles do rule out a few procedures for judicial selection-such as by inheritance or through techniques that systematically exclude persons by race, sex, ethnicity, and class. In addition to examining the interaction between democratic theory and * Arthur Liman Professor of Law, Yale Law School. © Judith Resnik 2005. This article stems from presentations at the Symposium, Jurocracy, at the Benjamin N. Cardozo School of Law in March of 2004 and at the Symposium, JudicialAppointments in a Free and Democratic Society, at the University of Toronto Law School in April of 2004, and builds on my articles "Uncle Sam Modernizes his Justice System": Inventing the District Courts of the Twentieth Century, 90 GEo. L.J. 607 (2002), Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article 111, 113 HARV. L. REV. 924 (2000), and Changing Criteriafor Judging Judges, 84 Nw. U. L. REv. 889 (1990), as well as on testimony that I submitted to subcommittees of the United States Senate and of the Canadian House of Commons on the topic of judicial nominations. I benefited from comments of other participants, the exchanges at these symposia and hearings, and from discussions with Seyla Benhabib and Deborah Hensler. My thanks to Joseph Blocher, Andrew Goldstein, Paige Herwig, Johanna Kalb, Alison Mackenzie, Jennifer Peresie, Bertrall Ross, Kirby Smith, Laura Smolowe, and Steven Wu for research assistance, to Gene Coakley for all his efforts to locate relevant materials, and to Denny Curtis, Vicki Jackson, Roy Mersky, Roberta Romano, and Albert Yoon for helpful comments on earlier drafts. HeinOnline -- 26 Cardozo L. Rev. 579 2004-2005 580 CARDOZO LAW REVIEW [Vol. 26:2 judicial selection, this article details the degree to which the life-tenured (or "Article III") judiciary in the United States has become anomalous, both when compared to high court judgeships in other countries and to other kinds of federal judges-magistrate and bankruptcy judges-in this country. Article III judges have no mandatory age for retirement nor a fixed, non-renewable term of office. Rather, they serve relatively long terms-often of more than twenty years. In addition, they control the timing of their resignations, enabling them to bestow political benefits on a particular party. Further, Article III judges now have the authority to appoint hundreds of non-life-tenured federal judges. A first conclusion is that conflict over life-tenured judgeships is neither surprising nor necessarily inappropriate. Given the nature and form of power held by Article III judges, the political import of federal courts in the United States, the constitutional allocation of power to both the President and the Senate, and disagreements about what good governance entails, judicial selection is a ready opportunity for political signaling. Second, debates about individuals seeking confirmation have been repeatedly used as a means of articulating legal norms. From the legality of the Jay Treaty in the eighteenth century to the role of railroads and unions in the nineteenth century to the rights of women in the twentieth century and gay marriage in the twenty- first, conflict over nominations has helped to identify certain issues as powerfully divisive and others as so settled as to be seen as nonpolitical. Third, to see utility in debate about who shall serve as life-tenured judges does not mean that the current structure is optimal. With the growth in the number of life-tenured judgeships at the lower ranks and with the innovations in information technology, powerful participants in and out of the government have gained the ability to fill many seats with individuals identified with certain approaches to American law. Life-tenured appointments were always an opportunity for patronage, but when the slots were few and the length of tenure shorter, they could be used less successfully as a means of setting long term political agendas. Therefore, and fourth, consideration should be given to revising the federal process. The Senate ought to increase its efforts to scrutinize nominees at all levels. Requiring a supermajority rule to confirm is one technique to signify that the power of judicial appointment is shared and that senators ought to take an active role in making life-tenured appointments. Further, Congress could create incentives, such as pension benefits or penalties, to encourage individual judges to step aside after a specified number of years-thereby generating more openings and reducing the long term impact of individual appointments. And, just as the Supreme Court has found constitutional the devolution of judicial power to non- life-tenured judgeships, it could also reread Article III to permit fixed times for retirement. Moreover, judges should be required to make more transparent their work and the rationales for their judgments. Proposals such as these derive from democratic values of constrained power and dialogic development of the law. Thus, while the fact of a democracy does not drive specific selection methods for judges, it does inform rules about the terms of service and the mode of action of judges. Democracy teaches that no one person (judges included) ought to hold too much power for too long. Fifth, such proposals, underscoring the political process and import of judicial selection in the United States federal system, need not be exported. When democracies have histories of other techniques for making appointments or have HeinOnline -- 26 Cardozo L. Rev. 580 2004-2005 2005] JUDICIAL SELECTION AND DEMOCRACY 581 more specification of the judicial role, the allocation of power, and rights of individuals, as well as other means of debating legal norms, one would be hard pressed to advocate practices that make screening processes as publicly contentious as in the United States. Turning individuals-who have not yet taken their seats nor faced the particular legal and factual questions as they emerge through litigation-into vehicles for debating the shape of social values is neither the only nor necessarily a good way to have such debates. Both the people and the ideas become caricatures, and the peculiar decisionmaking processes of adjudication, with its fact-full specificity, become lost. TABLE OF CONTENTS I. The Appropriately High Price of Article III Judgeships ............................... 582 II. Theorizing Judicial Selection in Democracies ............................................ 591 A . Adjudication and Dem ocracies ............................................................... 591 B. Selecting Judges in Democracies: Appointments and Elections ............. 593 C. New Democratic Concerns and New Legitimating Practices: Diversity and Constraints on Judicial Power ........................................... 597 III. Supplying New Kinds of Judges to Meet the Demand ............................... 601 A. A Singular Form of Federal Judgeship: The Article III Judge ................ 601 B. Pressures for More: Demanding Justice .................................................. 602 C. More Federal Judges, Differently Selected: Magistrate, Bankruptcy, and Administrative Law Judges .......................................... 605 IV. On Top of the Hierarchy-For Life ........................................................... 613 A . L ength of Service .................................................................................... 6 14 B . Form s of Pow er ....................................................................................... 620 V. Judicial Appointments as a Form of and Forum for Politics ....................... 622 V I. The U tility of C onflict ............................................................................... 629 A . A Venue for Debating Norm s ................................................................. 631 B . U seful Interventions ................................................................................ 637 VII. American Exceptionalism, One Hopes ..................................................... 642 List of Charts Chart 1 Article III Authorized Judgeships: District Circuit, and the Supreme C ourts 1901, 1950, 2001 ..................................................................................602
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