Report No. 121

U.S.A.

5.3. Six diverse methods for recruitment of 28,000 Circuit Judges in fifty different States of U.S.A. are in vogue. They are partisan election, non-partisan election, merit selection at one or more levels of the judicial system, gubernatorial appointment, legislative election and selection by sitting judges. All Federal judges are appointed by nomination only.1

1. Ibid., p. 23.

5.4. All judges of the Federal judiciary in United States are appointed by the President subject to confirmation by simple majority vote of the Senate. The responsibility of the President for selecting and nominating a judge has often been largely delegated to the Attorney-General and Deputy Attorney-General.

Reagan Administration has established a formal committee under the chairmanship of President's Council, including the Attorney General plus seven other high officials of the Department of Justice of the White House. The Committee reviews recommendations for vacancies, submits these to checks by FBI and judgments by American Bar Association and then forwards these recommendations to the President.

5.5. To get through the Senate, the appointee must have the approval of Home State Senator and if he does not, then the Senate defeats the nomination as a matter of fraternal quid pro quo courtesy. The American Bar Association has set up a Committee of fourteen members to participate in the process of the selection for Federal judiciary. In course of time, this Committee has become a powerful and respectable vehicle in the vital initial stages of the nominating process and has a powerful voice at least below the Supreme Court level.

The Committee does not suggest names for nomination to Federal judiciary but its role is confined to evaluating the qualifications of actual and potential nominees. A nominee held to be 'not qualified' by the Committee is generally not approved by the Justice Department.1

1. H.J. Abraham The Judicial Process, pp. 24-28, (5th Edn., 1986).

5.6. The nomination by the President and ratification by the Senate in their combined effect involve political consideration though the President would not attempt to designate members of the judiciary purely on the basis of political considerations. The Committee of the American Bar Association acts as a positive check in this behalf which generally focuses the attention on merit and excellence. Having said all this, it must be conceded that the political pressures must nevertheless be reckoned with and are disregarded only at the appointing authority's peril.1

2. Ibid., p. 29.

5.7. Election of judges is in vogue and is still widespread in a majority of the States in America. There are two constituencies for the election. They may be elected by the electorate or by the Legislature. They may run on partisan tickets or non-partisan tickets. The term of office for most elected judges is on an average 6 to 10 years, for some it extends to 15 years and for others to life.

5.8. An interesting attempt at a compromise between the elective and appointive method of choosing State judges is present in some of the States. This compromise is designed to minimise political influence and provide a degree of security obtained by retaining the element of popular control.1

1. Ibid., p. 35.

5.9. What is known as California Plan may be briefly examined.1 It applies to Judges of the Supreme Court and Courts of Appeal only (Trial Court appointments are at the Governor's discretion). The Governor nominates one person to the Commission on Judicial Appointments, composed of Chief Justice of the State's Supreme Court, the presiding judge of court of appeal of the area concerned and the Attorney-General. If the Commission approves, the appointee is deemed to be appointed only until the next general election (but for not less than one year).

At the end of that period, the nominee stands for general election fora full twelve years term of office, his or her name being the only one on the non-partisan ballot. There are no limits on the number of terms to which a successful candidate may aspire. If the electorate's response is negative, the Governor will designate a successor in the same manner who will ultimately go before the electorate. The final burden of approval is on the people, who must familiarise themselves with the candidate's record-or at least they ought to do so.

1. Ibid., p. 36, 38.

5.10. What is known as Missouri Plan may as well be briefly examined.1 Plan is mandatory for appointment of a Judge of the Missouri Supreme Court, judges of other appellate courts of the State, the circuit and probate courts in St. Louis and in Jackson county and St. Louis Court of corrections. Under this Plan, Missouri Appellate Commission operating on different court levels selects three candidates for every vacant judgeship.

For the Supreme Court and the appellate court, the Commission consists of the Chief Justice of the State's Supreme Court, the Chairman, three lawyers elected by the State Bar, one from each of the three courts of appeal, and three citizens, who are not members of the Bar, appointed by the Governor, one from each of the three appellate districts.

The Commissions for the circuit and other lower court judges comprise the presiding judge of the court of appeals of the district in which the circuit happens to be situated, two members of the Bar elected by its own members residing in the circuit involved, and two similarly resident non-bar citizens appointed by the Governor. The members of these Commissions are designated for staggered six year's term of office with changes taking place in alternate years.

The Governor has a four year term and can succeed to the office once only. It is accordingly unlikely that he or she would appoint all the lay members. To ensure an additional degree of impartiality, Commissioners are permitted to hold neither public office nor an official position in a political party. The Governor of Missouri is obliged to choose one of the three individuals selected by the appellate commission and appoint him or her until next general election. After this probationary period, the appointee must be approved by the electorate.

1. H.J. Abraham The Judicial Process, pp. 38-40

5.11. The Missouri Plan thus combines the democratic notion of accountability to the electorate with an intelligent method of selecting qualified candidates for judicial office. The necessity of facing the electorate on the record provides a judge with an incentive of judiciousness and the fact that he or she stands on personal record rather than against that of an opponent allied with a specific political party, goes far towards taking the courts out of the more pernicious aspects of politics. On the other hand, the fear that awareness of establishing a good record in the electorate's eyes may lead to timid popular judgments is proved unfounded on the results of the Missouri Plan in action.