First-time judges should be chosen from amongst trial lawyers. Those doing the choosing should be guided by the opinions of senior members of the bar and bench. These opinions should be formally sought but confidentially given. Judges should generally be chosen from practitioners within the jurisdiction. Thus, local court judges from local court practitioners, district court judges from district court practitioners, and state supreme court judges from state supreme court practitioners. Judges for appellate courts should be chosen from amongst trial judges who have demonstrated their superior legal reasoning through precisely worded and jurisprudentially sound judgments.

It is reckless in the extreme to choose a person who has never before held judicial office to sit on an appeal court. Arguments that invoke the need for ‘balance’ are misguided. It is not balance that is needed, rather it is the best legal minds that are needed.

Direct election by the people

This is undesirable because:

  1. Campaigning is beneath the dignity of the office;
  2. The man in the street is unqualified to judge legal ability;
  3. It allows special interests to influence the judiciary through the financing of campaigns.

Appointment by the executive

This method lacks checks and balances. Experience shows that executives often fail to research candidates exhaustively and instead just choose any old person who comes to mind. An example of this was George W. Bush’s nomination of Harriet Myers, his White House Counsel, for the Supreme Court. She had never served as a judge, never taught or written on the law, and had only scant experience as a litigator.

Nomination by the executive with confirmation by the legislature

This method is best of all. Here the onus is on the executive to research the best candidates, then the legislature holds hearings to determine whether the nomination will be ratified. The traditional hostility and friction between at least part of the legislature and the executive spurs both branches to properly investigate the candidate.

This article is an extract from the book ‘Principles of Good Government’ by Matthew Bransgrove