After Marbury, who sits on the courts matters a great deal. Article II, Section 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court," and Congress has applied the same method to the other federal judges.
Why it works
Article III says judges "shall hold their Offices during good Behaviour" and their pay may not be cut while they serve. In practice that means for life, unless they resign or are impeached and removed. Hamilton argued in Federalist No. 78 that "permanency in office" lets judges rule by the law even when the decision is unpopular. Critics, then and now, answer that life tenure puts great power beyond the voters' reach; some today propose term limits, and others defend life tenure as the guarantee of independence. Since 2013 (lower courts) and 2017 (the Supreme Court), the Senate has confirmed judges by a simple majority, without a 60-vote filibuster threshold.
| Federal judges | Many state judges | |
|---|---|---|
| Chosen by | the President, with Senate consent | voters in elections, or appointment followed by retention elections (it varies by state) |
| Term | during good behavior (for life) | fixed terms in most states |
| Removed by | impeachment by the House and conviction by the Senate | the state's own methods |
Key idea
The President nominates federal judges and the Senate confirms them by majority vote; they serve "during good Behaviour," meaning for life unless impeached and removed, which is meant to keep them independent.
Worked example: Counting a confirmation
The Senate votes 52 to 48 on a Supreme Court nominee. Is she confirmed?
- Confirmation needs a simple majority of senators voting.
- 52 is more than half of 100.
Answer: Yes, she is confirmed.
Worked example: Federal or state?
A voter in a state sees a judge's name on her ballot. Is it a federal judge?
- Federal judges are appointed, never elected.
- Many states elect judges or hold retention votes.
Answer: No. It is a state judge.
Common mistake
Thinking justices are elected or serve fixed terms. Federal judges are appointed and serve for life; only the House and Senate can remove one, through impeachment. Many state judges are elected. Check: is the court federal or state?