Independence and Accountability of Justices

Selection 

The judicial branch is the only branch of the federal government in which none of its members are elected. In addition, federal judges have lifetime tenure as long as they exhibit “good behavior.” Consequently, how they are selected is of great importance.

The president nominates federal judges. There are no constitutionally mandated qualifications for nomination or appointment as a federal judge. There have been judges and justices who were not attorneys, though more recently they almost always have extensive legal training. Presidents tend to nominate judges who are presumed to share the president’s politics. However, a number of supreme court justices have famously decided cases inconsistent with the politics of the president who appointed the justice.

Judges are appointed with “the advice and consent” of the Senate. After a president nominates a person to the federal bench, the Senate conducts hearings to decided whether or not to confirm a nominee. Nominees appear before the Senate and are questioned, while that is not required under the Constitution, nor has it been a consistent practice since the Founding. Senators may vote for or against nominees for any reason they choose. Often during the nomination and confirmation process, many individuals and organizations express opinions on the nominee. As one might expect, confirmation hearings have been somewhat contentious in recent years, and a number of nominees have been rejected by the Senate over the country’s history.

Lifetime appointment serves to insulate the justices from outsides influence, however, presidents have occasionally sought to influence justices. Indeed, President Franklin Roosevelt’s court packing plan in 1937 was an attempt to influence the federal judiciary. Roosevelt proposed adding members to the Supreme Court, since the Constitution does not set the number of justices. The “court packing plan” was conceived to counter the influence of conservative justices who were hostile to New Deal legislation. The plan was met with broad resistance and was not adopted. However, President Roosevelt made his point, and soon after his court packing plan the Supreme Court began upholding New Deal legislation rather than striking it down.

Removal

Federal judicial appointments are essentially lifetime appointments barring impeachment and removal. Over the course of our history there have only been a handful of successful impeachments of federal judges. This is designed to insulate judges from politics and assure independence. The Constitution indicates textually that judges serve during “good behavior,” but it does not indicate what behaviors would constitute grounds for removal.

Once appointed, a federal judge may be impeached and removed. Samuel Chase has the distinction of being the only supreme court justice to have been impeached. Chase avoided removal when he was narrowly acquitted of charges by the Senate in 1805. Several judges from the federal trial and appellate courts have been impeached and removed. The most recent was Judge G. Thomas Porteous from Louisiana in 2010.