With Senate hearings about to begin on the Supreme Court nomination of Judge Sonia Sotomayor, you might be wondering how judges are chosen, why anyone would want the job, and the fictional opportunities.

My previous columns on state and federal court terminology describe the different levels of state and federal courts and the judges who preside over them. For the structure of a particular state court system for your story, the best reference is the National Center for State Courts’ directory of state court websites, http://www.ncsconline.org/D_KIS/info_court_web_sites.html .

How are state court judges chosen? Methods of choosing state court judges vary widely. Some states elect judges, typically in non-partisan races; mid-term vacancies are filled by appointment and the appointee must run for election either at the end of the term or at the next general election. Judges unopposed for re-election may face a “retention ballot,” meaning voters are asked whether to retain the judge. If the winner is “Mr. No”–to quote a Montana judge–the resulting vacancy is filled by appointment.

In other states, positions are appointed, typically by the governor with advice from a judicial nominations commission.

A third variation is a combination, with positions in some types of courts elected and others appointed. The National Center website gives state-by-state particulars.

How are federal judges chosen? Federal judges are appointed by the president with the “advice and consent” of the Senate. In practice, this means the president nominates candidates and the Senate holds confirmation hearings. Although the Constitution sets no requirements–such as age or education–the Department of Justice screens potential candidates. The Senate requires candidates to complete lengthy questionnaires describing their education, work history, finances, and professional associations in excruciating detail. Senate staffers read volumes of briefs and articles the candidate wrote in practice, and if the candidate is already a judge, scores of previous opinions. The American Bar Association rates nominees’ qualifications for integrity, professional competence, and judicial temperament. During the Bush years, ABA evaluations were downplayed, but the Obama administration appears ready to give them more weight.

Nominees usually share the president’s political affiliation, or at least his political philosophy. But surprises do occur. Richard Nixon nominated Harry Blackmun, a Court of Appeals judge, to the Supreme Court in 1970 and expected a conservative. But Justice Blackmun wrote the majority opinion in Roe v. Wade (1973), and many observers claim his judicial philosophy became more liberal over time. The justice, though, maintained that the rest of the court simply became more conservative. New York Times Supreme Court reporter Linda Greenlaw’s Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Times Books, 2005) draws on his extensive personal papers. The first president Bush expected David Souter to be reliably conservative; instead, he proved himself a free-minded New Englander and generally voted with the Court’s more liberal wing.

Justice Souter and Judge Sotomayor share an important qualification which no other current Supreme Court justice has: experience as a trial judge. That may matter less in the Supreme Court, where cases tend to focus on constitutional law and other major legal issues, than at the appeals court level, where cases come directly from trial and often involve evidentiary questions and other issues of trial procedure. Nonetheless, I think it critical that at least one justice have the experience of listening to witnesses, observing jurors, and applying the rules of procedure and evidence day in and day out. It’s basic practical stuff that’s easily forgotten in the sometimes more academic world of appellate courts.

Federal judges are appointed for life, except for magistrates who are appointed for a term. Life tenure is critical in preserving the independence of the judiciary and assuring that decisions are impartial and made without fear of recrimination. It’s also the reason “Article III judges”–all federal judges except magistrates, so called because authorized by Article III of the U.S. Constitution–are sometimes called “the last bastion of tyranny.” Federal judges may be impeached and tried by a streamlined version of the process used against the president, for misconduct, including criminal convictions; if convicted, they are removed.

What’s the difference between a judge and a justice? The difference in title is a mark of respect for the office. “Justice” is reserved for the members of the U.S. Supreme Court or a state’s highest court. The members of other courts are called “judge.” An exception: in New York, where the trial court is called the Supreme Court, its judges are called justices. Despite the formal title, a “justice of the peace” is a judge, not a justice, and in casual conversation, is often called “the JP.” A judge may also be referred to as “the court.”

In person, the correct term of address is Judge, Justice, Chief Justice, or “your honor.” Out of their hearing, of course, judges may be called many other things.

Why serve? Judicial pay is set by statute. Currently, the Chief Justice of the Supreme Court is paid $212,000, associate justices $203,000, federal appeals judges $175,000, and federal district judges $165,000–the same as a member of Congress. State court pay varies, but is generally lower–for example, Washington State’s citizen salary commission recently froze state Supreme Court justices' pay at $164,221, Court of Appeals pay at $156,328, and Superior Court pay at $148,832. Many chief judges–including U.S. Chief Justice John Roberts and Washington’s Chief Justice Gerry Alexander, my former boss–have advocated strongly for increases, pointing out that experienced and capable judges have left the bench for the higher-paying private sector. But with state budget shortfalls likely to continue for several years, future pay raises will likely be small or non-existent for a while.

So it’s not for the money. Why, then? Intellectual challenge. The opportunity to serve the public in an immediately tangible way. Belief in the judicial system. Variety–although criminal cases are the bulk of the docket at the trial court level, civil cases involve every conceivable issue. In one recent Montana case, the judge’s sentencing opinion demonstrated that he not only knew all the elements of the crime charged–theft–and the factors to be considered in sentencing, he had also learned quite a bit about fossil paleontology and had thought a great deal about the appropriate sentence for a once highly-regarded paleontologist. Other factors may be a lack of interest in running a private practice and keeping the clients coming in the door, and to a limited degree, prestige. The judges I knew at the Washington State Court of Appeals joked that judging simplified clothes shopping.

There is some professional isolation. When a small-town lawyer takes the bench, he or she usually gives up regular lunches and golf games with other lawyers to avoid bias and the appearance of impropriety. When I clerked at the Washington State Court of Appeals, the judges usually ate with their clerks–all of us fresh out of law school. Great for us, because we got to know them so well and hear terrific stories. But their circle of peers was limited to the court itself. In a rural county with one or two judges, lunching alone could get old.

Judges in fiction and nonfiction: The best-known judge in mystery is Margaret Maron’s Deborah Knott. The cases she handles as a judge typically don’t relate to her investigations, but they are always well-portrayed–sometimes gut-wrenching and sometimes pretty funny. I like Judge Deborah a lot.

John Grisham wrote about judges in The Brethren (2000), and judges appear in some of his other novels as well. A particularly interesting portrayal of a judge is Rosemary Auber’s Ellis Portal, a former Toronto lawyer and judge disgraced after being convicted of a crime.

The nature of the job may limit opportunities to use judges as protagonists, but they can be great secondary characters. Hard to beat the judges in John Mortimer’s stories and novels for their quirks and their ability to drive a barrister to drink–admittedly, a short trip for Horace Rumpole.

For nonfiction references, Woodward and Armstrong’s juicy classic, The Brethren: Inside the Supreme Court (Simon & Schuster, 1979), provides an insider’s view of the Court’s daily workings. Former clerk Edward Lazarus provides a more recent perspective in Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books, 1998). I haven’t read Sandra Day O’Connor’s The Majesty of the Law: Reflections of a Supreme Court Justice (Random House, 2004), but she’s a goddess in my book.

The late Chief Justice William Rehnquist reportedly said he’d been appointed for life and meant to serve the full term. Having two retired Supreme Court justices is very unusual. Justice O’Connor founded the Our Courts project for civics education for kids (www.ourcourts.org) and Justice Souter has said he’ll do similar work in New England. They’re keeping up the good work, and that’s good for us all.

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