ABA Division for Public Education: Resources on Independence of the Judiciary: Article, Page 2

Independence of the Judiciary
Background Article

Independent Courts: How Important Are They?, Continued

Don't Judges Need to Be Accountable?
Those who criticize the life appointments of federal judges say that this system limits accountability. But the framers of the Constitution, in giving the power of the purse to Congress, provided for some oversight of the judiciary by the legislative branch. This oversight is frequently exercised through the Congressional budget process. The federal judiciary, led by the Chief Justice of the United States, must submit a proposed budget each year to the lawmakers who set their salaries. Congress frequently holds hearings to inquire into issues such as how the courts are using their money, how many cases they have heard in the past year, and how many judges are really needed. Some feel this process is inappropriate, bordering on interference in the judiciary. The framers, however, established this provision as one of the checks on the judiciary.
The Selection of Judges
Another check on the judicial branch is that any federal judge, after being nominated by the President, must be confirmed in the Senate. In recent years this process appears to have become more and more politicized, with many lawmakers asking pointed questions about judicial candidates' positions on specific issues and delving into nominees' backgrounds. These background checks often seem to be conducted for the sole purpose of finding something personally damaging to publicize. Nominees are often forced to withdraw from a race because of something embarrassing in their past, from smoking marijuana to not paying for a housekeeper's social security taxes. In addition, each political party, in control at different times of the Congress, has simply held up nominees' hearings for an inordinate amount of time, and in some cases either refused to give a hearing to appointees or rejected them outright.
Perhaps the greatest impact on judicial independence is derived from the methods by which judges are selected. The U.S. system is best known by the federal method of judge selection, wherein the President nominates all federal judges for a life term and they are confirmed or rejected by a vote of the U.S. Senate. This has produced many dramatic hearings on television, including the rejection of Judge Robert Bork in the 1980s and the confirmation of now Supreme Court Justice Clarence Thomas in the 1990s.
Though the federal process gains more prominence in the media, most jurists in the United States are state judges. There are more than 30,000 judges in the 50 states, 87 percent of whom—in 39 states—must face voters regularly in some type of popular election.⁸ The election structure differs among the states, though most judges are elected in nonpartisan contests, meaning that they do not run under the banner of one political party. Many judges, however, must obtain the endorsement a political party, garner favor from party leaders, raise campaign contributions from individuals, law firms and corporations and take positions in campaigns. Organizations such as the American Bar Association have criticized this process, saying it undermines the independence of judges.⁹ Recently, a report by the Committee for Economic Development (CED) concluded, "elective systems tend to undermine the independence and impartiality of the judiciary" and called on leaders to "take actions to initiate reforms that would eliminate judicial selection by election."¹⁰
The problems with election of judges seem obvious. If judges have to raise money, how can we expect them to be totally independent and impartial when campaign contributors come before them at trial? Even when judges honestly put aside biases, the appearance of favoritism remains. Meanwhile, campaign costs are rapidly rising, with television ads putting some judicial campaigns over the million-dollar mark.
Foreign commentators and jurists, who often express admiration of the independence of our judiciary and the life-terms of federal judges, are often shocked when they hear about the system of electing state judges. Judge V. Robert Payant of the National Judicial College writes that a judge from Russia, where some judges are appointed for life terms, felt that appointed jurists "have a much better chance at judicial independence than the poor American judges who are facing an [elective] system."¹¹
Like mayoral, state legislative or Congressional candidates, judicial candidates are pressed to take public positions on issues. Judicial elections critics say this undermines judges' impartiality and allows plaintiffs or defendants in future cases to predict how a judge will rule in their cases. Some state legislatures have tried to reduce this problem, enacting codes of conduct for judicial elections. Such legislation mandates special rules for judicial elections, such as prohibiting judicial candidates from making pledges that commit or appear to commit them to specific positions on issues likely to come before them. There is much debate among lawyers and legal scholars on whether such codes violate the Constitution, and whether they have a positive or negative affect on judicial elections.
In June 2002, the U.S. Supreme Court struck down part of a Minnesota judicial code of conduct, saying that it violated the First Amendment free speech clause.¹² This decision prompted much controversy, with four of the nine Justices dissenting. Justice Sandra Day O'Connor, who herself once ran in a state judicial election, condemned elections of judges, saying, "Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.¹³ Writing for the majority, Justice Scalia did not see the election of judges as much different than election of state legislators, since state court judges possess the power to both "make the common law and shape the state constitution."¹⁴
If the election system is to be changed, what is the alternative? Many believe that the nomination and confirmation system laid out in Article III of the Constitution is the best method of safeguarding judicial independence, but only a few states have moved from straight elections to a gubernatorial or legislative nomination process. Only one, Rhode Island, has gone to the federal system of lifetime appointments.
The most popular alternative to straight elections is known as the "Missouri Plan," which was first outlined the 1870s and then gained support in the 20th century, at a time when reformers felt the election of judges diminished the difference between judges and other elected officials.¹⁵ Under the Missouri Plan, a nominating commission comprising lawyers and laypersons, often chaired by a respected judge, would propose the names of potential judges. The commission in some cases has the power to name the judges outright; in others, it sends a name or names to the governor of the state, who makes the final selection. The system, often referred to as "merit selection," is supported by many who believe it results in a much higher caliber of judge than elections or straight appointments by a governor, who may appoint political cronies or campaign contributors.
Another aspect of the Missouri Plan that has been widely adopted is that of "retention elections."¹⁶ Generally this means that, after a certain term of years, the name of a judge who was initially appointed through a nominating commission or another type of merit selection is placed on the ballot. The voters then vote "Yes " or "No" to retain or not retain this judge for another term. The advantage of this system is that the judge does not have to run against another candidate. Yet the retention system does not eliminate all the dynamics of judiciallections—candidates might still have to take positions and seek campaign contributions.
Though it appears that most legal scholars, judges, bar association leaders and officials of many other organizations support abolishing judicial elections, these same experts predict that it will difficult to change this system. In its 2002 report the CED predicted that eliminating judicial selection by election "will not come quickly."¹⁷ Professor Roy Schotland of Georgetown Law Center, commenting on the CED report, writes, "For the 96 years of major efforts to replace contestable elections for the bench, not a singe state has eliminated elections."¹⁸ To some extent, the reasons for this lie in Americans' love of democracy. In the 19th century, the prevalent concern of most citizens was holding judges directly accountable to the public's will. Today, there are other reasons that may prevent the elimination of judicial elections, including the fact that it is in interest of political parties to field candidates for as many offices as possible. More electoral races mean greater interest in elections in general and more offices parties can use to reward loyal party workers or financial contributors.
Conclusion
So where does all this leave our country on the issue independence of the judiciary? First, it is important to note that public confidence in the courts has been declining. Polls uniformly confirm this. In a 1995 survey by U.S. News and World Report, only eight percent of respondents had a great deal of confidence in the judicial system, while 46 percent said they had some confidence and 45 percent said they had no confidence at all.¹⁹ One factor influencing these statistics is publicity. The most sensational and most atypical cases—the O. J. Simpson case is a perfect example—are often the most publicized and tend to show the courts in a negative light. Socio-economics also influence confidence in the judiciary; polls often reflect the fact that poor people, members of minority groups and other disadvantaged Americans are the most alienated from the courts. One NAACP lawyer said, "There are sectors of the public I cannot discuss the judicial system and the judiciary with any more and convince them that they should have faith in it, they should view it as impartial� We have lost poor people, at least in the area that I work. It is beyond the reach because what they see is anything but impartial and anything but fair." ²⁰
Does the public really understand the courts enough to evaluate their independence? The American Bar Association clearly thinks that some criticism of judicial independence is merited but it finds that "the current state of federal judicial independence remains essentially sound."²¹ The ABA recommends that judges and lawyers do more to educate the public about the courts, which might build confidence in them. The ABA itself has recommended that its Division of Public Education should take the lead in forming a coalition of organizations dedicated to educating the public about the importance of an independent judiciary and an impartial system of justice.
Why is the issue of judiciary independence of such concern to the legal, business and academic communities? Perhaps because without independent courts, we might not be able to restrain a President who has gone too far in a political campaign, void a state law requiring the segregation of schools, or hold a police officer accountable who has committed police brutality. As Senator Sam Ervin Jr. of Watergate fame said more than 30 years ago, judicial independence is "perhaps the most essential characteristic of a free society."
<<Previous Page

⁸ Committee on Economic Development. Report: Justice for Hire: Improving Judicial Independence. Introduction and Executive Summary. p. 1.
⁹ American Bar Association. Section 5. State Judicial Independence: A Review of Recent Issues and Arguments. p. 1 of 4.
¹⁰ Committee for Economic Development. Introduction and Executive Summary. p. 4.
¹¹ American Bar Association. Section 5. State Judicial Independence: A Review of Recent Issues and Arguments. p. 2 of 4.
¹² Landman, James H. "An Elusive Ideal: Judicial Selection and American Democracy." Social Education 66 (5) p. 300.
¹³ Landman. p. 301.
¹⁴ Landman. p. 300.
¹⁵ Landman p. 295.
¹⁶ Landman p. 295.
¹⁷ Committee on Economic Development. Chapter 1: Introduction and Executive Summary. p. 4.
¹⁸ Schotland, Roy. Letter to Charles Kolb from Professor Roy Schotland, Georgetown University Law Center. p. 3.
¹⁹ American Bar Association. Section 6. "Findings, Conclusions and Recommendations." p. 13 of 18.
²⁰ American Bar Association. Section 6. "Findings, Conclusions and Recommendations." p. 15 of 18.
²¹ American Bar Association. Section 6. "Findings, Conclusions and Recommendations." p. 1 of 2.

Resources Home | Resources: Independence of the Judiciary Home