Judges and Judicial Decision-Making

Guest Lecture

Emma Marshall, JD, MA

Overview

Who are Judges?
What do they do?
How do they make decisions?

Selection of Judges

Federal Courts

Nominated by President
Confirmed by Senate
Life tenure with good behavior

State Courts

Process varies:
- Elections
- Appointments
- Hybrid Model

The process used to select judges differs based on what court or court system you are looking at.

For the federal courts system, which includes the US Supreme Court, the 13 U.S. Courts of Appeals, the 94 U.S. District Courts, and a variety of other specialty courts and also some administrative article I courts that you honestly don’t need to care about right now… the process is clearly outlined in the Constitution.

Federal judges have to be nominated by the President and then confirmed by the senate and once they are confirmed they have life-tenure and will continue to hold office during good behavior or until they retire or die.

The only way they can be removed from office for misbehavior is through Congressional impeachment proceedings which is incredibly rare and requires both a functioning Congress and a pretty egregious case of ethical misconduct.

Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:

At the state level, methods of judicial selection vary substantially in the United States, and in some cases between different court types within a state.

There are six primary types of judicial selection:

partisan and nonpartisan elections,
the Michigan method,
assisted appointment,
gubernatorial appointment,
and legislative elections.

Judicial Elections

Partisan
Nonpartisan
“Michigan method” (hybrid)
Retention

Judicial Appointments

Process varies by state and court level

Assisted by commission

Merit Based (“Missouri Plan”)
- State Bar Association
- Governor
- Hybrid

Direct decision

State Legislature
Governor

Assisted appointment Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list.[21] At the state supreme court level, this method is further divided into the following three types: Bar-controlled commission: The state Bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from. Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from. Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control. Direct appointment Legislative election: Judges are selected by the state legislature. Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.

Politics of Selection

Studies have found evidence that judges…

Let political attitudes shape decisions¹
- Make decisions that maximize policy preferences
- or are consistent with partisan beliefs
React to electoral pressures in reelection years
- More likely to give harsher sentences²
- or death penalty³
Hot button issues (e.g., Abortion rights) ⁴

Attitudinal models of judicial decision making holds that judges make decisions that will maximize their policy preferences, voting in ways that are consistent with their political ideology (Segal & Spaeth, 1993, 2002; George 1998)

Judges who face reelection or some form of retention election face additional pressures. There is evidence that judicial decision making is influenced by political and electoral concerns.

Studies have found that in years in which they are up for reelection, judges are more likely to sentence criminal defendants to death (see Brace & Hall, 1997; Brooks & Raphael, 2003; Bright & Keenan, 1995) or to sentence more harshly in general (Huber & Gordon, 2004)

Also evidence that certain ideological preferences play a role in politics of judicial elections and can influence judicial decisions (Champagne, 2005; Ware, 1999).

Activity: Honorable Judge Herbie?

Is Herbie eligible to run in a Lancaster County Court Judicial election in May 2023? (Explain)

48 Years Old
Divorced
UNL Law Class of 2010
Resident of Wahoo, NE
Proud member of the NE Republican Party
Admitted to the NE bar in 2012 (still active)
Spent 10 years practicing law in Nebraska law
Argued in front of Nebraska Supreme Court in March 2023
BUT has longstanding personal beef with Sen. Pete Ricketts

Nebraska Judges

Hybrid system
- Assisted appointment + retention elections (3/6 yrs)
Qualifications
- U.S. citizen
- At least 30 years of age
- Practiced 5+ years of law in NE
- Can practice before the NE Supreme Court

You will also note that in Nebraska this hybrid selection process requires that judicial appointees have at least 5 years of experience practicing law in Nebraska and be a member of the bar (which requires a law degree).

Appointment of Judges The merit selection system is used for the selection and retention of Nebraska judges. When a judge resigns, retires, dies, or is removed from office, the vacant position falls under the discretion of a judicial nominating commission.

Each judicial nominating commission is made up of four lawyers selected by the Nebraska State Bar Association, four nonlawyers who are appointed by the Governor, and a nonvoting Supreme Court justice acting as chairperson. The judicial nominating commission must not have more than two lawyers or two nonlawyer members from either political party. A judicial nominating commission holds a public hearing to interview candidates who have submitted their names for the open position. The judicial nominating commission submits the names of at least two qualified attorneys to the Governor. Generally, the Governor decides who will become the new judge. However, if the Governor elects not to make an appointment within 60 days after receiving the list of nominees from the judicial nominating commission, the Chief Justice of the Supreme Court makes the appointment from the list of nominees.

Qualifications of Judges Applicants for positions on all levels of Nebraska courts must meet a number of requirements in order to be appointed to office. Each person must be a U.S. citizen, be at least 30 years of age, and have practiced law a minimum of 5 years in the State of Nebraska. The person must also be currently admitted to practice before the Nebraska Supreme Court.

The Judicial Nominating Commissioner’s Manual contains detailed information on the merit selection system.

Retention of Judges A judge must run for retention in office in the first general election that occurs more than 3 years after their appointment, and every 6 years thereafter.

When a judge runs for retention in office, the question presented on the voters’ ballots states: “Shall Judge [blank] be retained in office?” If more than 50 percent of the voters indicate that the judge should not be retained, the judge is removed.

You’re basically a judge now!

Think about how you made that decision…

Issue: Identify the legal issue/task.
Rule: Locate the relevant legal rule.
Analysis: Apply that rule to the facts.
Conclusion: Decision made!

Legal education, training and Judges

Studies have found evidence that lawyer judges…

Do rely on law and precedent¹
- Consider fewer extralegal factors
- Mitigate own implicit biases with reasoning²
  - And often smaller bias (e.g., hindsight bias³
Perceive legal concepts differently
- Procedural vs. distributive justice⁴
More experienced with legal ethics/practice

Nonlawyer judges

Would you want to have your case heard before a non-lawyer judge?

32 states do not require law degrees (lower courts)
Often limited by case types:
- Eviction cases (17 states)
- Criminal misdemeanors (22 states)
  - No right to re-trial by lawyer judge (8 states)

Most people assume that judges have legal training and a law degree, but that is not true in many lower level courts in many states.

At least 32 states allow at least some low-level state court judges to adjudicate without a law degree, and in fact, there are hundreds of magistrates and justices of the peace in these states wielding substantial legal authority who have never been trained in the law.

In 17 states, judges with no law degree are permitted to adjudicate eviction cases.

In 22 states judges presiding over misdemeanor cases don’t have to be lawyers, but in at least 14 of those states defendants who receive a jail sentence from a non-lawyer judge have the right to seek a new trial before a lawyer-judge.

In Montana, Arizona, Colorado, Nevada, New York, Texas, South Carolina and Wyoming non-lawyer judges can hand down prison sentences for misdemeanors without the right to a new trial before a judge with legal training.

Legal Expertise and Judging

Studies have found evidence that lawyer judges can…

Make inaccurate factual determinations and verdicts¹
Make (racially) biased sentences decisions²
Award inappropriate compensation³

And also…

Studies have found evidence that lawyer judges can…

Fail to ignore inadmissible evidence¹
Inaccurately evaluate:
- scientific, expert, or statistical evidence²
Exhibit some lay cognitive biases and heuristics:³
- anchoring & framing effects
- hindsight bias
- confirmation bias
- egocentric bias

What can we make of these findings? One interpretation is that despite their legal training, judges are no different than laypersons in being prone to cognitive biases. On the other hand, the lack of real-world context in simulation experiments may artificially inflate the effects of biases. In actual trials, judges weigh inadmissible evidence along with many other pieces of evidence, including arguments by opposing legal counsel, so any effects of implicit biases may be negligible.

The Rachlinski et al. (2009) study also hints that when judges have more detailed information or deal with settled legal doctrines, such as those bearing search and seizure, and have more time to consider and deliberate, their training allows them to process information differently than laypersons. Yet, research on actual sentencing decisions in which race is implicated gives us reason to pause.

Should all judges be lawyers? (Discuss)

Role of Judges

Depends on court and jurisdiction

Trial court judges

Finders of fact (e.g., bench trials)
Supervise jury trials
- Matters of law (evidence, experts, etc)
- Manage environment
Overall case managers
- Pretrial
- Negotiations & Settlements/Pleas

Appellate judges

Merits of cases
Oral arguments
Write or join opinions
Court admin (Chief)
- Case loads
- Staff & facilities

Judges make decisions for a living.

But while judges as a group may share certain responsibilities and objectives, judges sitting on different courts and across jurisdictions are responsible for making different types of decisions and are subject to different constraints on their decision-making processes.

Trial court judges can be required to act as finders of fact in bench trials, jury trial supervisors, and overall case managers.

Appellate court judges make decisions about the merits of particular cases, determine whether to join an opinion and whether to write separately

Trial court judges wear many different hats, variously serving as finders of fact, trial supervisors, and overall case managers.

These judges decide some cases on the merits, but they also manage the trial process–ruling on objections and motions and instructing juries about the law.

In their role as case managers, trial court judges make decisions that

Trial court judges are also responsible for determining the admissibility of various types of evidence, make determinations about the appropriate amount of bail, and conduct posttrial assessments of damage awards. They also now spend much of their time managing the pretrial and case settlement processes as well as overseeing the implementation of remedies posttrial (Resnik, 1982).

As fact-finders, judges may struggle to simultaneously accomplish myriad goals.

Appellate judges face an overlapping and different set of tasks than trial court judges. They do not act as fact-finders and instead are primarily engaged in the process of judicial review.

They face decisions such as whether to grant cert to hear a case or whether to grant en banc review.

They also make decisions about whether to ask questions at oral argument and what the nature of those questions will be.

They also engage in more opinion writing and, in additional to determining how they will vote in a particular case, must decide whether to join a particular opinion, to write separately, or to author a dissenting opinion.

The specific appellate court a judge sits on also impacts the decisions they make. For example, SCOTUS justices exercise more control over their agenda than intermediate appellate judges.

Case Study: Courtroom Access

Case Study: Courtroom access and Juries

Decades of research on pretrial publicity (positive and negative) shows impact on jury verdicts
- But lack of empirical research focused on judges

How do you study these types of judicial decisions? (Discuss)

Studying “Judges” is hard!

Recruitment of participants
- Limited time
- Hard to access
- Heterogeneous samples
- Ethics
Experimental Design
- Courts lack of homogeneity
- Decisions are complex
- ‘Black box’ problem
  - Need complex models to explain how and why

Models of Judicial Decision Making

Traditional legal theory says judges reach decisions based on law and precedent.

But judges are people too!
- with varied qualifications and constraints
No single model explains judges behavior
- But can incorporate:
  - Expertise…
  - Training…
  - Attitudes…
  - Motivations & goals…
  - Cognitions…
  - Social context…
  - & more!

Each of the varied decisions that judges are called on to make inevitably evokes a range of possible goals. Different models of judicial decision making tend to highlight particular goals.

There are various legal realist and critical realist alternatives to this model including attitudinal, strategic and managerial models.

The attitudinal models focus on the ways in which judges make decisions that further their preferred policy objectives (Segal & Spaeth, 1993, 2002).

Strategic models incorporate considerations of the ways that judges seek to effectuate their goals in the long term (Epstein & Knight, 1998; Maltzman, Spriggs, & Wahlbeck, 2000)

The best way to think about these models is they each may accurately capture some of what ever judge does some of the time and no single model is likely to describe any judge all the time. A sophisticated understanding of judicial decision making should explicitly incorporate the notion that judges simultaneously attempt to further numerous, disparate, and often conflicting, objectives.