Judicial Appointments: Is There a Better Way?

On November 18, the U.S. Senate voted to confirm Embry Kidd to the 11th U.S. Court of Appeals, raising questions about the appointment system and the legislative partisanship that dictates it. 

On the day of the presidential election, Kidd was one of five nominees by President Biden to appeals courts who were waiting to be considered by the Senate. Following Former President Trump’s victory, Senate Democrats have continued to push Biden’s judicial appointees through the confirmation process, relying on notable absences of Republican Senators to achieve close votes [1]. However, despite these absences, Democrats have faced procedural pushback from Republican leaders. The vote on November 18 lasted until midnight because of Republican-led roll call votes on motions that usually pass unanimously, adding hours of voting to a procedure that should only take a few minutes [2]. These pushbacks are making it increasingly difficult for Biden’s judicial appointees to be efficiently confirmed before Trump takes office in January. 

Despite these efforts, Kidd was confirmed by a 49-45 vote in his favor. He has experience in both private practice and public service, and has issued over 13,700 opinions in his time on the bench. Kidd is also the second Black judge on the 11th U.S. Circuit Court of Appeals, which hears cases from Alabama, Florida, and Georgia. Most of President Biden’s confirmed appointees have been women or people of color, aligning with Biden’s goals to diversify the bench [3]. 

With Democrats trying to confirm as many judges as possible and Republicans making every effort to stall, politics seems to be inextricably intertwined with the current system of judicial appointments. This raises questions about whether appointing federal judges is truly the best method, particularly if the intent is to avoid an overly polarized judiciary. Appointments, in theory, provide an extra layer of security for hopeful judges by forcing them to pass through a qualified legislative body who would understand the intricacies of the process and the issues at stake in choosing a particular judge more than an average American citizen would. This system should prevent the judiciary from being swayed by an uninformed electorate’s whims. However, Americans today are far more civically educated than the Founders likely expected, and many people have called for a more democratic system of selecting federal judges. 

Electing judges seems more democratic, but such elections would be subject to ethics concerns around corrupt election finance practices and might encourage judges to “run” on political platforms to appeal to citizens, which contradicts notions that the legal system should be grounded in interpreting the law rather than promoting political agendas. On the other hand, appointments can become inherently political by removing public opinion and instead subjecting the decision to the agenda of the appointer [4]. This is exactly what is happening now with Biden’s appointees; there is a partisan split that dictates procedures and votes where it should be unanimous based upon qualifications. Even the Democratic rush to appoint judges before the end of Biden’s term shows the deeply politicized nature of the appointment system, as there is an understanding that a President of another political party will appoint ideologically different judges. 

Both elections and appointments of judges are susceptible to corruption and partisanship, yet looking at Missouri shows possible benefits of a combination of the two. The Nonpartisan Selection of Judges Court Plan, better known as the Missouri Plan, emerged in 1940 after an increased public dissatisfaction with the influence of the political machine in the judicial selection process. Under the Missouri Plan, a nonpartisan commission reviews applications and appointments and selects judges. There are different commissions for different geographical areas of the state, and each one has a different combination of judges, lawyers, and citizens selected by the governor. After a judge has been in office for at least one year, they will have a retention election alongside the next general election. Here, judges are listed on separate ballots and without their political affiliation. A simple majority of votes from the public would allow the judge to continue serving for their full term [5]. This system adds a layer of accountability by giving the electorate an opportunity to review their ruling history and determine if they are fit to remain in office, yet it retains the structure and quality of appointments by using a nonpartisan commission. 

Since then, over thirty states have adopted parts of the Missouri Plan [6]. This plan allows for more merit-based appointments and holds judges accountable to the public for the decisions they make in a standard that regularly appointed judges are not necessarily held to. However, this can also discourage judges from making decisions that may be unpopular in their area. For example, in 2010, three Iowa Supreme Court justices lost their seats after retention votes following their decision to legalize gay marriage [7]. The balance between democratic opinion and qualified appointment is difficult to discern, and both of these systems of selecting judges are imperfect. Even combining these systems cannot truly reconcile the difficulties that each one brings in the effort to select qualified judges who are also accountable to the public and do not become the mechanisms for partisan fighting.

Under the current system of appointments, President Biden is pushing to confirm as many federal judges, particularly women and people of color, before the end of his term. Despite procedural difficulties from Senate Republicans, Democrats are also enthusiastically fighting to fill as many open spots on the federal bench as possible. Embry Kidd, the most recently confirmed judge, represents both the successful diversifying of the courts and the procedural difficulties of hyperpartisan appointments, yet the future of this system will remain uncertain, especially on the state level, if pushback like this continues on party lines. 

Sources:

1. Diego Areas Munhoz & Tiana Headley, Senate Democrats Face GOP Fight on Rush of Biden Judge Nominees, BLOOMBERG L. (Nov. 19, 2024, 12:28 PM EST), https://news.bloomberglaw.com/daily-labor-report/senate-democrats-face-gop-fight-on-rush-of-biden-judge-nominees. 
2. Id.
3. Nate Raymond, U.S. Senate Confirms First Biden-Picked Appellate Judge Since Election, REUTERS (Nov. 18, 2024, 7:55 PM EST), https://www.reuters.com/legal/government/us-senate-confirms-first-biden-picked-appellate-judge-since-election-2024-11-18/.
4. Brady Johnson, The Age-Old Question: Should Judges Be Appointed or Elected? Here’s What You Said, JUDICIAL EDUC. (June 17, 2017), https://www.judges.org/news-and-info/the-age-old-question-should-judges-be-appointed-or-elected-heres-what-you-said/.
5. Missouri Courts, Nonpartisan Court Plan, https://www.courts.mo.gov/page.jsp?id=297.
6. Id.
7. Brady Johnson, The Age-Old Question: Should Judges Be Appointed or Elected? Here’s What You Said, JUDICIAL EDUC. (June 17, 2017), https://www.judges.org/news-and-info/the-age-old-question-should-judges-be-appointed-or-elected-heres-what-you-said/.