Most people assume judges were lawyers at one point in their career. When someone ends up in court, they like to think the person in the fancy robes sitting highest in the room is something of an expert on the law. After all, that person could make you pay a lot of money or spend time in prison. Do judges have to be lawyers? As this post explains, for a large number of judges, nothing requires them to be lawyers.
In many states, there are not any laws or rules requiring judges to be lawyers; however, their path to a judgeship might be more uphill without relevant experience. Only Article I federal judges and some state judges are required to have been lawyers. The US and many state constitutions and laws do not require Article III and state court judges to have been lawyers. Regardless, the process of becoming a judge usually eliminates non-lawyers from becoming judges.
What is a Judge?
A judge presides over a court and makes decisions when an issue of law needs to be decided. For example, if neighbors sue each other over a property line dispute, then a judge would issue an order interpreting the law as it applies to the specific facts of the case. Sometimes there is a jury that makes a recommendation to the judge, but the judge hands down the final decision.
There are many different types of judges. Judges are sometimes called magistrates, appellate judges, or justices. Their title depends on the type of court, but they’re all just judges. Many federal judges have power because of Article III of the United States Constitution, but some judges, such as magistrate and bankruptcy judges, have power under Article I of the Constitution. This is important since Article I judges are the only federal judges required to have been lawyers. State judges are sometimes elected, but some state constitutions and/or laws allow for certain judges to be appointed.
Judges’ selection method mostly affects how long a judge remains “on the bench” (a fancy way of saying how long they remain judges.) Elected judges may need to be reelected every two or more years whereas appointed judges have terms lasting from a few years to the end of their lives, if they choose to remain. Whether the judge is appointed or elected also affects why the judge probably has a law degree.
What Kinds of Judges are Appointed?
Federal and most state supreme court judges are appointed. For example, in the United States, Supreme Court Justices are nominated by the president and confirmed by the Senate. State supreme court justices are typically appointed by some sort of legislative body that has been elected by the people, for example, state representatives or governors. In some states, the state bar association, which governs the practice of law in the state, will provide a recommendation of whom to appoint to the governor.
The process for appointing a judge varies, but it closely resembles the hiring process for a high-level executive. The process includes multiple interviews, recommendations, background checks, and sometimes public hearings. The process may take several rounds and months to complete.
The interviews generally involve questions about the person’s judicial philosophy. For example, Supreme Court Justice nominees frequently have strong opinions about whether they are originalists who interpret the Constitution based on what was intended or textualists who interpret the Constitution at face value. To effectively answer such questions, one would need extensive study in constitutional law. This often results from law school and practicing law for a number of years. So this is one way non-lawyers are weeded out as judges.
What Kinds of Judges are Elected?
Many state constitutions and laws allow for judges to be elected. The voters may be citizens or state legislators. Just like with most elected officials, judges may campaign for a judgeship. The campaign may include interviews with media, speeches, fundraiser dinners, and many other activities. These events allow the voters to learn more about the person’s qualifications to be a judge.
If a judge is not a lawyer, then the voters may lack confidence in the ability to understand the law. Voters frequently vote based on how the elected official would help them. If they end up in court, they want a judge presiding that understands the law. Therefore, they may have more confidence in a judge that has experience practicing law. This is how a lack of experience as a lawyer may disqualify a candidate.
Unlike individuals involved with appointing judges, voters may not be fully informed about the candidate’s qualifications. Moreover, voters may value criteria other than education for picking a candidate. These criteria could be as simple as having known the person for a long time or even just picking the candidate whose name comes first alphabetically. This introduces more likelihood that a non-lawyer makes it to the bench.
Baby Judge School
Regardless of whether they are lawyers, many new judges attend “baby judge school” and legal conferences to increase and improve their skills. Judges new to the bench are teasingly called “baby judges” for the first few months or years of their time as judges. During this time, they must learn court rules, state and/or federal laws, and caselaw relevant to their caseload. This is where being a lawyer makes the biggest difference.
Experience as a lawyer likely makes learning the rules and law easier. But, for both lawyers and non-lawyers, baby judge school and legal conferences provide significant help learning how to be a judge during this time. Even the most experienced lawyer will encounter cases involving unfamiliar law, procedures, and rules as a judge. Non-lawyers may be more likely to make mistakes in these situations, but there are remedies for many mistakes.
What if the Judge is Wrong?
Everyone makes mistakes. Even judges who are lawyers sometimes make the wrong decision or handle a case incorrectly. If the mistake is related to interpreting the law, then the decision may be eligible to be appealed to a higher court. For example, if the judge interprets speeding in school zones as requiring triple the fine whereas the law only allows for double the fine, then this mistake may be appealable.
If the mistake is merely related to a fact, then the mistake probably cannot be appealed. This is because the trial courts are “fact-finders” and their findings of fact cannot be challenged. For example, imagine a case where one witness thinks the robbers drove away in a blue car, but another thinks it was a red car. If the judge decides it was the blue car when it was really the red car, this likely cannot be appealed.
In some states, if a non-lawyer judge presides over the case and hands down a prison sentence, then the accused may request another trial with a lawyer-judge. But in other states, non-lawyer judges can sentence people to prison with little consequence. A mistake in convicting and sentencing people has dire consequences for the defendant, but the judge may face few, if any, penalties. In the worst situations, though, judges may be “fired.”
Can Judges Be Fired?
In most careers, a big enough mistake results in being fired. This is true for judges, as well. Federal judges may be impeached and removed for egregiously bad conduct. This conduct must be treason, bribery, or other high crimes and misdemeanors. State constitutions may phrase the reasons for firing judges a bit differently, but they tend to be along the same lines. Thus, state court judges may be impeached and removed, as well.
Elected judges may be recalled or lose the next election. The process of recalling a judge generally involves an election. Alternatively, the state may appoint a judicial review or discipline commission to review the actions of the judge. Yet another way a judge may be fired is through a vote in the legislature. Even if the judge is not removed, they may be censured. If they are censured, then they must complete training or other activities to improve their skills or correct their behavior.
However, firing a judge is very rare. Federal judges have been impeached for intoxication on the bench, abusing their power, and even waging war on the United States. Most of the judges who have been impeached and removed were unethical in their acts as a judge, not just bad at what they are doing. One state court judge was recalled for giving too light of a sentence. These acts do not often occur, regardless of whether the judge is a lawyer.
Conclusion – Do Judges Have to Be Lawyers?
In a lot of circumstances, judges do not have to be lawyers. Article I judges, such as magistrates and bankruptcy judges, do have to be lawyers, but no other federal judges are required to have experience practicing law. A significant number of states also do not require the judges to be lawyers.
All judges go through training once they are on the bench. Even lawyer judges encounter unfamiliar cases and need additional research before presiding over cases. If the judges make bad enough mistakes or behave horribly, then they may be censured or fired.
Next time you find yourself in court or voting for a judge, remember you cannot assume they have any particular experience. They may or may not be a lawyer. It might be interesting to look up whether your state requires judges to be lawyers.
I am a freelance researcher and writer specializing in all things nerdy! I produce content for everything from blogs to academic papers in both legal and computer science fields. I love learning more about topics of which I only have slight familiarity.
References
- https://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts
- https://ballotpedia.org/Federal_judge
- https://ballotpedia.org/Judicial_selection_in_the_states
- https://en.wikipedia.org/wiki/Judicial_interpretation
- https://www.theatlantic.com/politics/archive/2017/02/when-your-judge-isnt-a-lawyer/515568/
