Americas Courts and the Criminal Justice System

11th Edition Neubauer

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Chapter 8
Judges

LEARNING OBJECTIVES

1. Discuss the role of the judge within the courtroom workgroup.

2. Name the three major ways that judges are selected in the United States.
3. Analyze the consequences of different methods of judicial selection.
4. Recognize major changes in the composition of the bench over that last several
decades.
5. Describe the activities of state judicial conduct commissions.
6. Explain the difference between the impeachment and the removal of a federal
judge.

KEY TERMS

American Bar Association (ABA): The largest voluntary organization of lawyers in the
United States. (204)

Chambers: The private office of a judge. (199)

gubernatorial appointment: Method of judicial selection in which the governor

appoints a person to a judicial vacancy without an election. (184)

impeachment: Official accusation against a public official brought by a legislative body

seeking his or her removal. (214)
judicial conduct commission: An official body whose function is to investigate
allegations of misconduct by judges. (212)

judicial election: Method of judicial selection in which the voters choose judicial
candidates in a partisan or nonpartisan election. (206)

judicial independence: Normative value that stresses a judge should be free from
outside pressure in making a decision. (209)

Missouri Bar Plan: The name given to a method of judicial selection combining merit
selection and popular control in retention elections. (206)

Removal: To dismiss a person from holding office. (214)

CHAPTER OUTLINE

I. The Position of Judge

LO 1: Discuss the role of the judge within the courtroom workgroup.
A. Powers of the judge
1. Set and revoke bail
2. Determine whether sufficient probable cause exists to hold
defendants
3. Rule on pre-trial motions to exclude evidence
4. Accept guilty pleas
5. Preside over trials
6. Set punishment upon conviction
B. Benefits of the job
1. High level of prestige and respect
2. Federal judges enjoy life terms
3. State judges from 6-10 year terms
4. May be the capstone to a successful career in law
5. Judicial incomes are among the highest of criminal justice officials
6. Many judges have the power to fill staff positions/jobs (patronage)
C. Frustrations of the job
1. Heavy caseload
2. Administrative problems
3. System limits
a. Lost documents
b. Delayed proceedings
c. Overcrowded jails
4. Lower prestige of the criminal court
D. Courts, Law, and Media
1. Judge Judy
II. Judges Within The Courtroom Work Group
LO 1: Discuss the role of the judge within the courtroom workgroup.
A. Constrained by the actions of others in the courtroom work group
B. Sanctions can be applied against judges who deviate from the consensus
C. Judges who fail to move their docket may be transferred to less desirable
duties
D. Judges are the most prestigious members of the work group
E. Amount of judicial influence varies among groups
F. In large courts, “judge shopping” is a common practice

III. Varying Roads to a Judgeship

LO 2: Name the three major ways that judges are selected in the United States.
LO 4: Recognize major changes in the composition of the bench over that last
several decades.
A. Executive appointments
1. All Article III federal judges are selected by executive appointment
2. The Senate must approve a presidential nomination but most
nominations are routine
3. Over the past decade nomination of judges has become a political
battle
4. The American Bar Association (ABA) has no formal role in the
process but plays a part through its Standing Committee on the
Federal Judiciary
5. In recent years the role of the ABA has been eclipsed by othe
interest groups
6. State appointments are similar to federal appointments but with no
senatorial courtesy
B. Election of judges
1. The voters should decide who is most qualified
2. Partisan influences
3. Traditionally low key but have become nastier in recent years
4. Incumbent judges being voted out at higher rates than in the past
C. Merit selection
1. Hybrid system
a. A judicial nominating commission of laypersons and
lawyers suggests a list of qualified nominees (usually three)
b. The state’s chief executive (governor) makes the final
selection from the list of nominees
c. After a short period in office, a retention election is held
2. Very few judges have been removed by retention ballots
3. In practice has reduced the politics and increased the power of the
legal profession
4. All states that have altered judicial selection have incorporated
merit selection

IV. Consequences of Judicial Selection

 LO 3: Analyze the consequences of different methods of judicial selection.
A. Which system is best?
1. When legislators appoint judges, former legislators are appointed
as judges
2. Election systems produce judges who have held political office
3. Difference is small
4. Elected judges react to public opinion
B. Similarities in judges’ backgrounds
1. White, protestant, educated
2. Born in the community where they serve
3. Not new to politics
C. Diversity and the judiciary
1. Diversity is increasing in the federal judiciary
2. Diversity in state judiciaries is slower
D. Case close-up
1. Chisom v. Roemer and diversity on the bench

V. Judging the Judges

LO 5: Describe the activities of state judicial conduct commissions.
LO 6:Explain the difference between the impeachment and the removal of a
federal judge.
A. Judicial independence
1. Criminal issue is removing unfit judges while still retaining their
independence
2. Courts, controversy, and the administration of justice
a. Is judicial independence being undermined?
B. Judicial misconduct
1. Corruption, scandal, and impairment—many states have enacted
voluntary retirement ages for judges and the Court has held they
are constitutional
2. Formal proceedings for removing judges
a. Recall elections
b. Impeachment
C. State judicial conduct commissions
1. Made up of judges, lawyers, and prominent laypersons
2. Investigate claims and complaints
3. May recommend private admonishment, public censure, retirement
or removal
4. State supreme courts retain the final power to discipline errant
judges
D. Federal conduct and disability act
1. Judicial Councils Reform and Judicial Conduct and Disability Act
(1980)
2. Hear complaints and investigate
 3. Serious findings are reported to the Judicial Conference, which
may recommend action by the U.S. House of Representatives
4. Impeachment used in the most serious cases
5. Conviction requires a two-thirds vote of the Senate and results in
removal and disqualification from holding any future office

VI. Judicial Ethics

LO 5: Describe the activities of state judicial conduct commissions.
A. Model Canons of Judicial Ethics developed by ABA
B. States have own canons
C. Accusations of improper conduct often reflect misunderstanding of
judges’ role
D. Judge bound by own codes of conduct to preserve integrity of the system
and foster public confidence

CHAPTER SUMMARY

The formal powers of judges extend throughout the criminal court process. From arrest
to final disposition, the accused face judges whenever decisions affecting their futures are
made. Judges set bail and revoke it; they determine whether sufficient probable cause
exists to hold defendants; they rule on pretrial motions to exclude evidence; they accept
pleas of guilty; if a trial takes place, they preside; and after conviction, they set
punishment. In the course of their workday, they conduct hearings, accept guilty pleas,
impose sentences, or work in chambers. In carrying out the responsibilities of the office,
judges mainly react to the work of prosecutors and defense attorneys.

Judges have been given a high level of prestige and respect. Federal judges enjoy life
terms, as do judges in a handful of states. Terms of office for state judges range from 6
to 10 years, a reflection of the independence of the American judiciary. For many
lawyers, a judgeship is the capstone to a successful career. Judicial salaries are not the
highest incomes in the legal profession, but they are higher than the average of other
criminal justice personnel. For the majority of lawyers, however, a judgeship represents
a significant decrease in earning power (Jensen 2011). Many judgeships carry with them
considerable patronage powers.

One of the most frustrating aspects of being a judge is the heavy caseload and
corresponding administrative problems (Rosen 1987). Moreover, the judge’s actions are
limited by the system—lawyers are late, court documents get lost, jails are crowded.
Added to these general constraints is the overall low prestige of criminal court judges,
who occupy the lowest rung within the judicial system. Despite these frustrations, judges
appear to be very satisfied with their jobs.

Judges are constrained by the actions of other members of the courtroom work group—
prosecutors, defense attorneys, and probation officers. Sanctions can be applied against
judges who deviate from the consensus of the courtroom work group, but by no means
are judges totally controlled by the courtroom work group. As the most prestigious
members of the group, judges can bring numerous pressures to bear on prosecutors,
defense attorneys, and others. The amount of influence judges actually exert on the other
members of the courtroom work group varies. Some judges are active leaders of the
courtroom work group while other judges have a laissez-faire attitude. In large courts,
“judge shopping” is a common practice. Although organizational pressures work to
provide a certain degree of consistency among judges, any examination of a multi-judge
court immediately shows that judges differ in terms of the sentences they hand out, the
way they run their courtroom, and the number of cases they have pending.

Which lawyers are selected to be judges is determined by both formal selection methods
and informal procedures. The major formal selection methods used in states include
partisan elections, nonpartisan elections, merit selection, and appointment. However,
formal selection methods (law on the books) are far less important than informal methods
(law in action) in determining which lawyers reach the bench. How selection is
determined establishes the formal routes to who becomes a judge; however, when a
judicial vacancy occurs, interim selection methods are needed.

In evaluating which selection system is best, a key criterion is whether one system
produces better judges than another. Researchers use measurable judicial credentials,
such as education and prior legal experience, as indicators of judicial quality. These
studies point to two different types of conclusions. From the standpoint of individuals
who wish to become judges, methods of judicial selection make a difference, but not
much. When legislators appoint judges, former legislators are more likely to be selected.
When the governor appoints, the system benefits those who have held state office.
Elective systems elevate to the bench a higher proportion of persons who have held local
political office. Under the Missouri Bar Plan and elective systems, former DAs are more
often selected as judges. From a broader perspective, methods of judicial selection have
only a marginal influence on the types of lawyers who become judges. Whether elected
by the voters, appointed by the governor, or selected through merit plans, state judges are
more alike than different. In terms of personal background characteristics, the systems of
judicial selection does not seem to make much difference.

Does one method of judicial selection produce higher-quality judges than another?
Scholars are divided on this question. It is important to note the evidence that judges
selected in partisan elections react to public opinion, whereas those appointed to office
are free of this constraint (Brooks and Raphael 2003; Pinello 1995). Evidence also exists
that judicial-selection methods may in some cases influence outcomes. Thus, it does
appear that the method of judicial selection matters. Which is “best,” however, is a
matter of interpretation.

Judges share some important similarities. In general, judges are men from the upper
middle class, they are more often white and Protestant, and they are better educated than
the average American. Another similarity among judges is that most were born in the
community in which they serve. Finally, judges are seldom newcomers to political life.
The profile of judges as white males has begun to change. Federal appointments have
begun to include more women and minorities. The picture with regard to state judges is
significantly more complicated. Until the 20th century, the number of female judges in
America was so small that they could be counted on the fingers of one hand. The 20th
century began witnessing gradual changes. As the number of women serving on the state
and federal benches has risen, there has been an understandable interest in probing the
“difference” women may bring to the bench (Martin 1993). Most studies find no gender
differences among judges (Miller and Maier 2008). That African-Americans are under
represented on the bench is partially a reflection of the paucity of African-American
attorneys, but also a product of how judges are selected.

What should be done about unfit judges? While there is a lack of clarity in what
attributes a god judge should possess it is apparent that a few judges do not fulfill
minimal standards. A system for removing unfit judges, while at the same time
guaranteeing judicial independence, is a critical issue. Systems for removing or
disciplining unfit judges must not only strike a balance between judicial accountability
and judicial independence, it must also grapple with the wide range of misbehavior
encompassed by the phrase “judicial misconduct” (Begue and Goldstein 1987). One of
the most difficult situations involves judges of advanced years whose mental capacity has
become impaired. A growing number of states impose mandatory retirement ages for
judges.

Formal methods for removing unfit judges—recall elections and impeachment

proceedings—are generally so cumbersome that they have seldom been used. A more
workable method for dealing with judicial misconduct is the judicial conduct
commission. The commission, made up of judges, lawyers, and prominent laypersons,
investigates allegations of judicial misconduct and, when appropriate, hears testimony. If
the commission finds in favor of the judge, the investigation is closed, and the matter is
permanently concluded (Miller 1991). If the complaint has merit, the commission may
recommend a sanction of private admonishment, public censure, retirement, or removal.
The state supreme court retains the final power to discipline errant judges (Gardiner
1986).

In 1980 Congress passed the Judicial Councils Reform and Judicial Conduct and
Disability Act, which lays out a precise mechanism for acting on complaints against
federal judges. Complaints are initially heard by the judicial councils. Most result in
either a finding of no misconduct or the imposition of nonpublic sanctions. However, if
substantial evidence of serious misconduct exists, the judicial council sends a written
report to the Judicial Conference, which may recommend that the U.S. House of
Representatives begin impeachment procedures. Impeachment does not mean
conviction, but rather allegations of wrongdoing. The trial on the articles of
impeachment is conducted before the Senate. Conviction requires a two-thirds vote of
the senators present and carries with it removal from office and disqualification from
holding any future office.

The American Bar Association developed a Model Canons of Judicial Ethics, similar to
the codes of legal ethics, but each state has adopted its own canons of judicial ethics. The
purpose of these codes of judicial conduct is to preserve the integrity of the judicial
system and to foster public confidence in the system (Gray 2003). Accusations of
improper conduct by judges often reflect a lack of understanding of the role of judges in
the adversary system. Judges face public criticism for reaching decisions that the public
finds unpopular. Prohibition on conduct that brings the judicial office into disrepute is
another requirement of canons of judicial ethics. The tension between electing judges
and appearances of impropriety is emerging as a major issue in judicial ethics. Judges
play a key role in enforcing legal ethics.

DISCUSSION QUESTIONS

1. Judges often cooperate with the other members of the work group and share their
decision making power. Is this a good or bad policy for judges to employ?
Explain.

Discussion Points: Judges often share their power in order to manage the heavy
case load in their court and ‘clear the docket’. If they retained all of their formal
powers, the work simply may not get done. Students may argue that this is both
good and bad, or a necessary evil.
LO 1

2. What is judicial independence? How can the interests of judicial independence

and judicial accountability be balanced? Which of those values do you think our
system currently lacking, independence or accountability? Explain.

Discussion Points: Judicial independence is a concept vital to neutral and

impartial decision making. Essentially it is the idea the judges are not ‘beholden’
to voters or executive branch officials for the decisions they make, instead, they
have the freedom to adjudicate cases based on the law and their best judgment.
Student opinions will vary with regard to which is currently more important,
judicial misconduct due to a failure of accountability or judicial independence.
LO 5

3. Which form of judicial selection do you think is best? What are the differences?

Discussion Points: The different ways that judges can be put into their positions.
Consider the importance of judicial independence.
LO 3

4. What should be done about judicial misconduct? How might culpability be a

consideration in decisions regarding how to respond to incidents of judicial
misconduct?

Discussion Points: the different types of responses to judicial misconduct and

what students’ think are the best ways to handle incidents of judicial misconduct.
 Discuss the difference in response to situations of senility versus intentional
abuses of power.
LO 5

ASSIGNMENTS

1. Utilize the internet to research judges in your county. Have there been any cases
of misconduct mentioned in the newspaper, on ‘watchdog’ websites, or otherwise
reported online? If so, were these cases you had heard about in the news prior to
doing this research? If not, why do you think that is the case? Discuss your
findings in the classroom forum.
LO 5

2. Ask your friends and family if, when they voted last, they remember if they voted
for any judges in the election. If so, ask if they remember who those judges were,
and whether they knew anything about them before they cast their votes that day.
Summarize your findings in a 1 page paper.
LO 2

3. Read the following article about the infamous case of a judge beating his disabled
daughter: http://www.nbcdfw.com/news/local/Texas-Judge-William-Adams-
Accused-of-Beating-Disabled-Daughter-133090233.html

Discuss the importance of judicial ethics. Should a judge be held accountable for
his/her behavior outside the courtroom? Why or why not? Write a brief paper on
your thoughts.
LO5

4. What is the difference between impeachment and removal of a federal judge?

Why is this distinction important? Do some research and find an example of each,
and compare the two instances.
LO6

INTERNET ASSIGNMENTS

1. “What System Does Your State Use?”

http://www.judicialselection.us/
 American Judicature Society Website
 Assignment: Students should use the website above to determine what
system your state uses to select judges. Students should outline the system
used in your state and discuss the strengths and weaknesses of that system.
LO 2

2. “State Judicial Conduct Commissions”

 http://www.scjc.state.tx.us/actions.asp
 Texas State Commission on Judicial Conduct Website
 Assignment: Have students research the site and report what sanctions
have been implemented in the last year. How many judges were
sanctioned? What were the sanctions for?
LO5

3. “ABA Model Code of Judicial Conduct”

http://www.americanbar.org/groups/professional_responsibility/publications/mod
el_code_of_judicial_conduct.html
 American Bar Association Website.
 Assignment: Have students read each of the canons on the site link above.
Students should reflect on what each of these canons means in the real
world of the courtroom. Have students take a “law in action” perspective.
LO 5