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Article Excerpt
Within the legal community judicial independence is understood, not as an intrinsic good or an end in itself, but as a means to achieve other ends. (1) If judges are independent-if they are insulated from political and other controls that could undermine their impartial judgment-it is thought that judges will be better able to uphold the rule of law, preserve the separation of powers, and promote due process of law. (2) Scholars, judges, and lawyers often acknowledge that judicial independence has institutional and decisional dimensions: institutional independence concerns the capacity of the judiciary as a separate branch of government to resist encroachments from the political branches and thereby preserve the separation of powers; decisional independence, in contrast, concerns the capacity of individual judges to decide cases without threats or intimidation that could interfere with their ability to uphold the rule of law. (3)
Properly understood then, judicial independence is circumscribed by the purposes it serves: decisional independence, for example, does not mean freedom from all external constraints, but only those constraints that interfere with a judge's ability to uphold the rule of law. Indeed, some forms of independence from decisional constraint, such as the freedom to decide cases for the benefit of friends or in exchange for bribes, are antithetical to the rule-of-law values that judicial independence is supposed to further. And so, if judicial independence is to achieve its goals, it must operate within specified constraints. It must, in other words, be tempered by judicial accountability.
Like judicial independence, judicial accountability is not an end in itself. It, too, serves other ends: to promote the rule of law, institutional responsibility, and public confidence in the courts. And like judicial independence, judicial accountability has multiple forms: institutional accountability mechanisms hold judges answerable collectively for their conduct as a separate branch of government, for example by subjecting court budgets to legislative oversight; behavioral accountability mechanisms hold individual judges to account for their conduct on and off the bench, for example by subjecting them to discipline for being abusive to litigants or accepting inappropriate gifts from lawyers who appear before them; and decisional accountability makes judges answerable for their judicial rulings, for example by subjecting their decisions to appellate review. (4) As to decisional accountability, however, suitable mechanisms are ideally limited to those that promote the rule of law by correcting judicial error without obliterating decisional independence by subjecting judges to threats or controls that could cause them to disregard the law and implement the preferences of those who threaten or control them.
The perennial policy struggle is to strike an optimal balance between judicial independence and accountability, to ensure that judges are independent enough to follow the facts and law without fear or favor, but not so independent as to disregard the facts or law to the detriment of the rule of law and public confidence in the courts. The American Bar Association's Model Code of Judicial Conduct, some variation of which has been adopted by almost every state supreme court, seeks to structure judicial conduct to preserve this balance. The 2007 Code tells judges that they "shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary"; (5) "shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially"; (6) "shall not be swayed by public clamor or fear of criticism"; (7) "shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment"; (8) and "shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge." (9)
In the context of state judicial selection, the struggle to balance independence and accountability has played itself out over the course of more than two centuries, as five distinct methods of selecting judges--each striking the balance in different ways--have vied for preeminence. In the fledgling states, all judges were selected by one of two methods: gubernatorial appointment with legislative confirmation (five states) or legislative appointment (eight states). (10) The colonial courts had been unhappily dependent on the crown, and the new states were committed to curbing their judiciaries' dependence on the executive branch--which is not to say that the new states were committed to an independent judiciary. Several states subjected their judges to a variety of legislative branch controls, including reappointment, which led to a series of independence-threatening confrontations with state legislatures during the 1780s that troubled the framers of the U.S. Constitution enough for them to embed in Article III tenure and salary protections for federal judges.
During the Jacksonian Era of the 1820s and 1830s, populist calls for judicial accountability initiated a movement to select judges via a third method: partisan judicial elections. Although the early catalyst for partisan judicial elections may have been a desire for greater accountability, the partisan election movement did not take hold until after the Jacksonians lost influence, led by reformers who argued that elected judges who derived their authority from the people would be more independent-minded than handpicked friends of governors, or jurists subject to the beck and call of legislatures. Indeed, University of Virginia law professor Caleb Nelson found that the impetus for the judicial election movement was a desire to promote judicial independence from the political branches, rather than to increase democratic accountability for judicial decisions. (11) Mississippi broke the ice in 1832. and by 1909 thirty-five states either entered the Union with judiciaries selected by partisan election or had converted to partisan elections from appointive systems.
In the early twentieth century, elected judiciaries were increasingly viewed as incompetent and corrupt. During the Progressive Era, worries that partisan elections led to the selection of less-than-capable and less-qualified judges who were beholden to party bosses culminated in a fourth form of judicial selection: the nonpartisan election. By 1930, twelve new states had adopted nonpartisan elections as the selection method for their judiciaries.
In the minds of some, however, nonpartisan elections left voters with precious little information upon which to cast an informed ballot, which led to the selection of less-capable and less-qualified judges. In the minds of others, contested elections-partisan or not-failed to divorce judges sufficiently from the political process. (12) In 1913, a fifth method of judicial selection was devised: a "merit selection" system, in which judges were appointed by the governor from a pool of candidates whose qualifications had been reviewed and approved by an independent commission. Judges so appointed would then run unopposed later in periodic retention elections, in which voters would decide whether the judge in question should be retained for another term. Missouri adopted the first merit selection plan in 1940, and by 1989 twenty-three states had commission-based appointive systems (with and without retention elections) to select some or all of their judges.
More recently, the merit selection movement has stalled. Constitutional amendments to establish merit selection systems in Florida, Michigan, Ohio, and South Dakota have been rejected by voters, and reformers in other jurisdictions have struggled unsuccessfully to place merit selection proposals on their ballots, while in some merit selection states there have been calls for a return to contested elections. (13)
Meanwhile, nonpartisan elections have enjoyed a renaissance. Arkansas, Florida, Georgia, Kentucky, Louisiana, and North Carolina moved from partisan to nonpartisan election systems in the past thirty years. And in 2003 the American Bar Association retreated from its previous position of exclusive support for merit selection, to a more...
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