THE MACHINE
APPOINTMENT AND REMOVAL OF JUDGES
Removal of Federal Judges
Like all higher federal officials, Justices can be removed from office by a formal impeachment committee of Congress. It has never happened.
Appointing Federal Judges
Courts are presided over by judicial officers. In the Supreme
Court, the judicial officers are called justices. In the courts
of appeals, district courts, and other courts, most of the
judicial officers are called judges. Today's justices and judges
have the authority, duties, and benefits assigned to them by law,
as enacted and amended by Congress.
Judges who are at least 65 years of age and have served as active
judges for a minimum of 15 years often elect to take senior
status. As senior judges, they may continue to hear cases, deal
with administrative matters, and serve on special commissions and
committees. Nearly 15 percent of the federal courts' caseload has
been handled by senior judges.
District Court Judges
With the exception of the three territorial courts, all district
court judges are appointed for life by the President with the
advice and consent of the Senate. Congress authorizes judgeships
for each district based in large part on the caseload. In each
district, the judge who has served on the court the longest and
who is under 65 years of age is designated as the chief judge.
The chief judge has administrative duties in addition to a
caseload.
It follows from what has been said that the principal quality requisite in the judge is the possession of, or the capacity to develop, professional legal skills of the kind required for judicial work. There is no point in preparing a catalogue of the requisite professional skills. They are well known — they include knowledge of evidence, procedure and practice, knowledge of the law, analytical ability, a capacity to dispose of a case smoothly and efficiently and a capacity to give a well-reasoned decision with reasonable promptness. Most of these skills will be more readily apparent in barristers than in other lawyers. In the case of non-barristers it may be a matter of identifying the possession of a capacity to develop those skills. That means identifying lawyers with a sound general knowledge of law or a relevant specialist knowledge (as the case may be) and an intellectual capacity to acquire in a relatively short time the requisite professional legal skills appropriate to judicial work.
It goes, virtually without saying, that certain personal qualities are indispensable — integrity, impartiality, industry, a strong sense of fairness and a willingness to listen to and understand the viewpoint of others. No doubt other qualities are desirable. Because justice is no longer a cloistered virtue, an ability to communicate to the legal community and the public about the law and the work of the courts is more highly valued than it was. But it is not an essential quality, though it verges on the essential for those who aspire to be Chief Justice or the leader of a court. The qualities I have listed above are the most important for judicial work.
In the United States recognition of the fact that the judges do exercise public power in this way led in a number of States to the popular election of judges for limited terms. The election of judges is bound to compromise their independence because it entails their campaigning for office and because it exposes the judges to the pressures of possible removal in consequence of popular disapproval of their judicial decisions. In other words, popular election exposes judges to the very pressures from which they are protected by executive appointment for life or until a prescribed retiring age is reached. There is also a justifiable concern that popular elections do not lead to a highly qualified judiciary.
Although the exercise of public power by non-elected judges is not a reason for electing judges, it is a reason for thinking that executive appointment by an unknown and ill-defined process which involves no more than private, confidential consultation is inadequate. There are a number of alternatives to the existing mode of appointment which call for consideration