A cancer on the republic: the assault upon impartiality of state courts and the challenge to judicial selection.

• Author: Burnett, Donald L., Jr.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

The story is a familiar one. On September 17, 1787, in Philadelphia, citizens gathered outside Independence Hall as word spread that the deliberations of the Constitutional Convention had concluded. Seeing Benjamin Franklin emerge from the building, a woman in the crowd asked him: "[W]hat have we got--a republic or a monarchy?" (1) Without hesitation, Franklin responded, "A republic ... if you can keep it." (2)

Today, we are not keeping the republic envisioned by the framers; we are losing it. The framers created a distinctive republic--a constitutional republic--in which representative government was combined with the constraint of a written charter. Power was dispersed among three separate, but connected, branches of the government, and fundamental rights of individuals and minorities were protected against usurpation by majorities. For more than two centuries, this republic has in all respects depended for its vitality upon the impartiality of an independent judiciary. At national and state levels, however, the concept of judicial impartiality is now under assault. Disregarding or dismissing the differences between the judiciary and the other, more partisan branches of government, powerful economic and political forces across the spectrum are now competing to control the composition of the courts, in order to create a judiciary aligned with their special interests. This assault upon judicial impartiality is a growing cancer upon our constitutional republic.

The well-publicized battles between the President and the Senate over Supreme Court nominations and other federal appointments have, until recently, diverted attention from the spread of this cancer among the state courts. Similarly, at both federal and state levels, much literature has explored and counterpoised the "independence" and the "accountability" of the judiciary, rather than focusing on a more fundamental, unique, and essential feature of the third branch of government: impartiality. This Article examines judicial impartiality in the context of the state courts. Section I endeavors to show how impartial state courts are essential to fulfilling the constitutional guarantees of a republican form of government and of due process and equal protection of the law. Section II describes the current assault upon the impartiality of state courts, and Section III suggests several ways in which this cancer on the republic can be slowed or reversed--by specific actions within, or related to, the judicial selection process.

1. THE IMPARTIALITY IMPERATIVE

   The genius of the constitutional republic created at Philadelphia lay in its establishment of a representative democracy, coupled with mechanisms for combating two historic forms of tyranny: the oppression of the many by the few, and the oppression of the few by the many. To prevent the oppression of the many by the few, the framers created a structural separation of powers. In THE FEDERALIST PAPERS, where Alexander Hamilton, James Madison, and (to a lesser degree) John Jay advocated successfully for ratification of the Philadelphia document, the dispersion of power received detailed attention. (3) In THE FEDERALIST NO. 9, (4) for example, Hamilton argued that the "science of politics" has advanced, revealing that a "distribution of power into distinct departments" can provide the "means ... by which the excellencies of republican government may be retained and its imperfections lessened or avoided." (5) Thus, the legislative, executive, and judicial functions of government would be performed separately. Failure to maintain this separation, wrote Madison in THE FEDERALIST NO. 47, (6) would result in an "accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, [that] may justly be pronounced the very definition of tyranny." (7)

   Focusing on the judicial branch in THE FEDERALIST NO. 78, (8) Hamilton declared that the independence of judges, secured by tenure during "good Behaviour," (9) was "one of the most valuable of the modern improvements in the practice of government.... [I]n a republic it is a[n] ... excellent barrier to the encroachments and oppressions of the representative body." (10) "[T]he independence of judges," Hamilton continued, "may be an essential safeguard against the effects of occasional ill humors in the society" and against "injury of the private rights of particular classes of citizens, by unjust and partial laws." (11) Judges, in Hamilton's view, would embody, and would themselves be subject to, the rule of law:

   [A] voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them...." (12) Thus, the framers charged the judiciary, as part of a constitutional republic, to prevent the rule of law from disintegrating under the duress of partisan forces operating in the other, more "representative" branches of government. The framers gave judges tenure for good behavior, in order to remove the judiciary as much as possible from the immediate pressures of majorities of the moment. The judges would stabilize the republican government, anchoring it in a rule of law and maintaining the structure of separated powers. (13)

   The framers similarly sought to prevent the oppression of the few by the many. In a constitutional republic, buttressed by an independent judiciary, the fundamental rights of individuals and minorities would not be subject to forfeiture upon the demand of political majorities. Judicial independence, as Chief Justice Rehnquist later observed, was "every bit as important in securing the recognition of the rights granted by the Constitution as ... the declaration of those rights themselves." (14) Thus, in the nation's history since the framing of the Constitution, the national courts have been challenged occasionally to "stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." (15)

   The benefits of a constitutional republic were so manifest to the framers of the Constitution, and so closely related to the concept of a federal system embracing a nation and the several states, that the framers provided for the national government to "guarantee to every State in this Union a Republican Form of Government." (16) This guarantee has come to be regarded, impliedly, as an obligation on the part of each state to establish and maintain a republican form of government. (17)

   Because state governments are required to be republican in form, they must be representative, reflecting the sovereignty of the people. (18) Whether they must also comprise constitutional republics following the national model--with separated powers and independent judiciaries--is a question that was not fully resolved by the framers. In THE FEDERALIST NO. 39, (19) Madison contended that it would be sufficient for the state governments and officers to receive their authority directly or indirectly from the people. (20) In THE FEDERALIST NO. 43, (21) he further suggested that states might choose various republican forms, so long as they did not interfere with the design and operation of the national government. (22) Yet it was also Madison, as noted above, who warned against the "tyranny" of "accumulation of all powers, legislative, executive, and judiciary, in the same hands." (23) And Hamilton, in THE FEDERALIST NO. 85, (24) noted the analogy of a state constitution to the proposed national constitution, with its "additional securities to republican government." (25)

   Today it appears widely accepted that the "analogy" holds true--that the national government must guarantee, and each state must provide, a constitutionally republican form of government which constrains the power of represented majorities. As noted by the Supreme Court in Duncan v. McCall:

   By the constitution, a republican form of government is guarantied [sic] to every state in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities. (26) Such "bounds to ... power" require that state governments have courts anchored in the rule of law and functionally differentiated from the other branches of government. (27)

   Further support for impartial and independent state courts can be found in the Fourteenth Amendment, which mandates that the states shall accord equal protection and due process of law to all persons. (28) Each of these obligations implies that courts must be more than the puppets of represented majorities. Although the Federal Constitution prescribes neither the methods by which state governments shall be organized, nor, in particular, how state court judges shall be selected, the methods must produce judges who can, and do, deliver upon these mandates of equal protection and due process. (29)

   The relationship between judicial impartiality and due process has been made explicit by the United States Supreme Court. (30) The Court has long recognized that due process requires the "impartiality of any jury empaneled [sic] to try a cause." (31) The Court has observed that "[t]he theory of the law is...