Constitutionally speaking, does retention matter?

• Author: Hernandez, Mauricio
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

1. INTRODUCTION

   The short answer has to be "no." But then that's only my opinion, which like vestigial organs and orifices unmentioned in polite company, everyone's got. Scholar or simpleton, '"As many men, so many minds;' every one his own way." (1)

   The forests chopped down for paper in service of decades of attenuated scholarship on judicial process and judicial selection are too numerous to count. Nevertheless, particularly when it comes to judicial elections--whether contested, uncontested, partisan, nonpartisan, or yes/no retention, the empirical data (2) is wanting. (3) What's left is mostly anecdotal or opinion-driven conjecture.

   Depending on the author's agenda, hypotheses are tied to thin reeds of statistically-manipulated support reminiscent of Mark Twain's popular remonstrance, "There are three kinds of lies: lies, damned lies, and statistics." (4)

   So my views on the topic are these. Since judicial retention elections operate even more under-the-radar than open, contested judicial elections, it's eminently more difficult for voters to give them much notice. So state constitutionally speaking, since retention elections do such a great job of insulating judges from voters, (5) the question of whether or not retention elections have an effect on the capacity of state courts to enforce state constitutional rights and responsibilities is pretty much a non sequitur.

   Moreover, it's only when high profile hot-button issues like abortion, the death penalty, and most recently, same-sex marriage boil over that the public finds any sense of possible judicial overreaching. It's then that the otherwise under-informed plebs are sufficiently informed to consider running for their pitchforks and torches.

   But it's still useful to sardonically note the inconsistencies within the legal academy evidenced by Professor Larry Kramer's populist wisdom (6) epitomized by his so-called "popular constitutionalism" (7) on the one hand versus the view of voter as ignoramus on the other. (8)

   "Ahoy polloi." (9) In the tension between judicial independence and judicial accountability, the legal guild wastes little time in subordinating the competing interests of the unwashed masses. To the boundless consternation of legal elites, the ignorant (10) multitudes favor direct contested elections of state judges over Missouri Plan nominating committee merit selection mechanisms and their placatory corollaries, yes/no judicial retention elections. (11)

   Indeed, despite the unfounded wishful thinking and ardent campaigning, (12) the latest effort went down to a predictable crushing defeat in Nevada. (13) Despite the painstaking statistical machinations of merit selection proponents, the public continues to resist. And in Nevada, it was the third time in a generation, giving the lie to the adage that the third time's the charm. (14) The results of the November 2010 ballot initiative for merit-based selection of judges failed when fifty-eight percent of Nevada voters rejected it. (15)

   Notwithstanding the collagen-injected lip service to the ideals of judicial accountability paid by lawyers, judges, bar associations, and legal academics, judicial independence always trumps accountability.

   As a matter of fact, merit selection where judges are appointed to an initial term by the governor from a list of nonpartisan commission nominated candidates was supposed to be the bridge less far between independence and accountability. (16) Freed from contested electioneering and the influence of campaign money, the initial appointment of judges was supposed to preserve and protect judicial independence. (17) And retention elections were supposed to provide the means for voters to hold outlier judges accountable. (18)

   But it's hard to dismiss the unvarnished wood in the cynical assertion offered by Indiana Law Professor Charles Gardner Geyh that "[t]he presence of retention elections in merit selection systems can only be explained as a concession to the entrenched political necessity of preserving judicial elections in some form, so that merit selection proponents have an answer for detractors who oppose plans that 'take away our right to vote.'" (19)

   Given the reams of often caustic critical analyses, principally from lawyers and academicians, the ignorant and apathetic voters have no basis to object. Some commentators not only look down their noses but down their chins wondering "whether citizens can select judges and interpret and enforce the constitution in a reasoned and responsible way. Do people have the capacity to achieve the goals of popular constitutionalism given a society apathetic and ignorant in the voting booth?" (20)

   And on the heels of the hand-wringing and teeth-gnashing following the decision of a "confused electorate" in Iowa's November 2010 election cycle where three state supreme court justices lost their retention elections, one law school academic found reason to complain about something rotten in the state of Iowa. (21) "[I]t does seem," he opined, "that there is something problematic about a judicial selection and retention process that allows a simple majority of voters to retaliate against judges who are charged with protecting the constitutional rights of minority groups." (22) University of Nevada Las Vegas Boyd Law School Associate Professor Ian Bartrum argues, "After all, only 'the People'--not a passing majority consensus--have authority to speak in constitutional terms." (23)

   Bartrum's prescription to save "the People" from themselves is to raise the bar higher by imposing a supermajority requirement to not retain a judge. (24) But why stop there? No matter that retention elections already approximate a lighter form of lifetime tenure, why beat around the bush? Can "the People" ever be trusted? Why not just skip retention votes altogether and call for lifetime tenure?

   As it is, with few exceptions, judicial retention elections do little to promote judicial accountability and far more to protect incumbency. (25) The infrequently cited truth is that very few judges are ever ousted via retention elections. For instance, "[a] study of retention elections in ten states between 1964 and 1994 showed no trend toward an increasing number of defeats." (26)

   The reasons? "In practice, however, there appears to be little accountability because the judges run unopposed in an unpublicized 'campaign." (27) The voting public is not as informed about the judge's qualifications or judicial record as they would be if there was an opponent to raise these issues. "As such, judges 'elected' through merit selection by and large serve as long as they desire." (28)

   So for all the caterwauling, Iowa is an aberration. And so was the oft-criticized albeit now twenty-six-year-old 'poster child' example of Rose Bird and her associates, Joseph Grodin and Cruz Reynoso, who lost their seats on California's Supreme Court in 1986 over their opposition to the death penalty. (29)

   It's hardly surprising, then, that given an understandable self-interest in job security, undisturbed by the specter of accountability-minded voters, judges prefer the merit selection and retention model. Moreover, research further validates the degree of their...