How We Choose Our Judges (1 of 3), 2008

Major Problems in Judicial Selection

The panel identified two major concerns: partisan elections for state judges and Senate confirmation hearings for federal judges.

Partisan Elections for State Judges

• Sandra Day O’Connor argued that partisan judicial elections are especially harmful. Unlike most other countries, many U.S. states elect judges, and election campaigns can bring money and political influence into courtrooms.
• Judith S. Kaye agreed that campaign money, party politics, rhetoric, and special interests undermine public confidence. She traced the spread of partisan elections to New York’s 1846 constitution, which other states followed.
• Ted Olson described the risks of money in judicial elections through a West Virginia case involving a $50 million verdict between coal companies. After the state supreme court reversed the verdict, reports raised concerns about relationships between justices and the company’s president, as well as campaign contributions and attack ads. Olson said such circumstances raise questions about recusal, fairness, and due process.

Federal Confirmation Hearings

Stephen Carter identified federal confirmation hearings as the most serious problem. He argued that nominees should not be pressed to predict how they would rule. Asking candidates to choose judges based on desired outcomes, he said, treats courts as subject to popular will rather than as independent interpreters of law. Carter also said the process damages public confidence.

Presenters and Contributors

Sandra Day O’Connor, Ted Olson, Stephen Carter, Judith S. Kaye, and Meryl Chertoff.