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Sunday, November 23, 2014

Judicial Elections and Historical Irony

Last week I was privileged to participate in a conference in New Mexico on the judiciary.  The debates and assigned readings focused especially on judicial elections (a new issue-area for me).   There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).  

“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states.  This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).  

 With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify.  Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.  

 In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects).  It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).  

 The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time.  The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…)  For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.

 My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power.  Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.  

 This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop).  Meanwhile, this change in the role of judges may also have coincided with the decline of juries.

 If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive?  (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)

 It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion.  At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges.  Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar.  Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet.  Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures.  I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).

In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable.  In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation.  Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight.  (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)

 John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)

 John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).

 Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)

 Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)

 G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)

Posted by Kirsten Nussbaumer on November 23, 2014 at 10:34 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics, Legal Theory | Permalink


Great thoughts, Kirsten. I've long thought that cries of "judicial independence" have really moved far from the original concerns of, say, the American Founding, where the concern was that the judiciary would be too dependent on the other branches of government--e.g., the Declaration of Independence's concern that the executive "has made Judges dependent on his Will alone." Instead, in a post-Progressive age, the proper question (one you're moving toward) is the extent to which the judiciary can be held in check--and, I think, you're right that matters like budget and impeachment may be too weak as tools to keep the judiciary in check. Again, nice thoughts all around.

Posted by: Derek Muller | Nov 23, 2014 10:51:14 PM

Thanks, Derek!

Posted by: KN | Nov 23, 2014 11:45:11 PM

"In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable."

That's fine. I don't think judicial elections do a great job at this, especially not given my local experience where the general public doesn't know who much at all (other than perhaps party labels and even there ... many cross-party endorsements) about the candidates.

The best place where this concern can be applied here, though repeatedly it serves as chances for one interest voting (e.g., judges defeated because of a single vote on same sex marriage) -- which I guess some might deem reasonable as much as any number of things that motivate voters but does seem more troubling here -- would be recall elections.

Even there, I think commissions or executive action would provide a better check, especially given the likely knowledge brought to the table by the average voter. This, I admit, might come off a bit elitist, but then why not put federal judges up to a vote instead of the to me fairly appropriate indirect mechanism we have in place?

I think impeachment, limited terms, norms for judicial behavior that can be enforced in various ways other than elections, certain restraints on jurisdiction and so on provide a means to restrain the judicial branch. Some checks were set back in 1787, so concern for limiting judicial power is not novel. The overall discussion is appreciated.

Posted by: Joe | Nov 24, 2014 12:20:47 PM

1) In a post-Progressive Era, we do not see the same disconnect between the political branches and The People; one represents and reflects the other and the counter-majoritarian courts are on guard against encroachments from either one. It follows that the judiciary must be independent of either one. There is a similar assumption in the Hollingsworth majority, where the initiative proponents lacks standing to defend because the majority could not conceive of their interests diverging from those of the political branches of government.

2) We perhaps can balance the concerns if we distinguish between initial selection and retention. From a judicial independent standpoint, the manner of initial appointment does not matter, since any judge owes her position to someone--it could be the legislature, it could be the public. So having initial selection by popular election may satisfy those populist/progressive tendencies. But we get independence by ensuring that the judges need not be subject to removal by any constituency.

Posted by: Howard Wasserman | Nov 24, 2014 4:10:25 PM

Joe, Howard and Derek, thank you all for the thoughtful comments. There’s much more in what you say than I can address—partly because I need to be in deeper with the empirical research, but also because it’s hard to speak in the abstract about state judicial systems and reform proposals that are really different in details that matter a lot. Still, I’ll offer impressionistic thoughts.

First, it’s helpful to distinguish accountability concerns about judicial behavior that are particular and individual (say, the judge with an alcohol problem) from the concerns that are more systemic (say, the proper calibration of countermajoritarianism and democratic accountability in a state judiciary as a whole). For the former, I agree with many of Joe’s comments. Low-information judicial elections and judicial elections that only become salient to voters on single hot-button issues seem unsatisfactory as devices for balancing judicial independence with accountability. Some states are trying to remedy these problems with voter information guides and the like, but the ones I’ve seen are ‘weak tea’. So, I agree, even in the elective systems, nonelective mechanisms may be are more important for policing such “good behavior” issues.

On the systemic concerns about judicial power and accountability (more my focus), I’m much closer to Derek than Howard. It’s not that I have any general conclusions about the states as a whole—that the state judges have either too much or too little power. It’s that I don’t think we can take for granted that a judiciary has a healthy or balanced relationship to the other branches—that it is a neutral umpire when deciding the boundaries between its jurisdiction and that of the legislature, or that we can take for granted that the independence and democratic responsiveness of the political branches is adequate. (I say this, Howard, even though I’m with you on not wanting judges simply reduced to a populist or majoritarian institution!)

No doubt, the democratic quality of the legislature and executive is affected by many variables that have little to do with judicial selection and retention. But the one confident normative point of my original post is my belief that there is an important (not transparent) relationship, and that, consequently, judicial reform proposals ought to be evaluated within this broader context of questions about the scope of democracy and separation of powers. Otherwise, we may have a drift towards a world in which the space for democratic (especially legislative) decisionmaking is very small, and a world in which democratic accountability is clouded even on the issues that a weak legislature is still deciding (think of the phenomenon of legislatures that strategically punt their constitutional and other difficult questions to the courts).

Posted by: KN | Nov 24, 2014 6:55:35 PM

The comment by Prof. Howard Wasserman regarding recall is noteworthy and suggests if there is direct popular involvement, it might be better on the front end. I would still have concerns, but do agree recall has the added problem that it affects judicial decision-making and independence.

Regarding the OP's reply, I would just note (1) thanks for the additional words and (2) there seems many issues there, not just applicable to judicial elections. That is, the concerns expressed -- well worth discussion -- can be addressed in various ways. Appreciated it.

Posted by: Joe | Nov 24, 2014 10:03:43 PM

Joe, you're reminding me--I also meant to comment on the appeal of Howard's proposal of election followed by (relative) immunity from removal (perhaps with good behavior and minimum competence as the sole grounds for removal). However, for any state where the judges are heavily involved in matters that blur into policy, or where they have a strong hand policing the legislative process, then I wonder if this should be achieved only through a limited, non-renewable term of years (as I recently heard proposed by others). This way, as Howard suggests, the sitting judges would be independent in the sense that they would not have a constituency to please for the next election or reappointment, but their original selection through election should make it more likely that the bench as a whole is within some reasonable distance of the people. If, on the other hand, we're talking about replicating the federal model of life-time tenure, then I do think there should be more careful inquiry into how much power a particular state judiciary has vis-a-vis the state's legislature, mechanisms of direct democracy, and its constitutional amendment processes.

Posted by: KN | Nov 25, 2014 12:57:17 AM

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