Contesting the judicial power in the states.

• Author: Tarr, G. Alan

Scott Gerber's A Distinct Judicial Power brilliantly traces the development of the Article III model of an independent judiciary from its colonial origins to the Philadelphia Convention. (1) Although Article III defines the federal courts, few states today fully embrace that model. (2) Article III guarantees federal judges tenure during good behavior, but only Massachusetts and New Hampshire follow the federal example. (3) Article III establishes a system of presidential appointment and senatorial confirmation, but only California, Maine, New Hampshire, and New Jersey use a system of executive appointment with confirmation by another body, and even those states' processes vary somewhat from the Article III model. (4) For example, in California the appointed judges run in periodic retention elections, (5) while in New Jersey they serve a term of 7 years after which they must be reappointed by the governor and confirmed by the senate to serve to the retirement age of 70. (6) Finally, Article III protects federal judges against reduction in their salaries, but some states permit such reductions as long as they are part of an across-the-board reduction of the salaries of state officials or prohibit raising the salaries of sitting judges as well as lowering them. (7)

Differences in the status of Article III judges and their state counterparts are not new. States have charted their own paths, looking more to the practices in sister states than to the federal system. (8) During the eighteenth century, several states introduced removal by address, under which judges could be removed from office without trial by vote of the state legislature. (9) During the nineteenth century, most states instituted partisan election of judges and reduced their tenure. (10) And during the twentieth century, some states introduced the recall of judges, some instituted nonpartisan election of judges, and others adopted "merit selection" of judges--a system under which the governor appoints from a list of candidates selected by a purportedly neutral judicial selection commission. (11)

This Essay traces the states' efforts to define the "distinct judicial power" in the decades after independence and the adoption of the Federal Constitution. The contours of that power were contested for much of the antebellum era as debates raged over the role of the judiciary in a republican polity. Two issues dominated that debate: from whom should judges be independent and what should be the scope of their responsibilities? Only after consensus was reached on these issues could discussion begin about what influences impinged on the performance of that function.

1. INDEPENDENT OF WHOM?

   Some early state constitutions contained stirring rhetoric on judicial independence. The Massachusetts Declaration of Rights of 1780, for instance, proclaimed "the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit," (12) and the Maryland Declaration of Rights of 1776 noted that "the independency and uprightness of Judges are essential to the impartial administration of Justice, and a great security to the rights and liberties of the People...." (13) Institutional arrangements under eighteenth-century state constitutions, however, emphasized judicial accountability to state legislatures. (14) As John Phillip Reid has noted: "Short terms with election and reelection voted by the same lawmakers who set rates of compensation and paid their salaries made judges more dependent than independent." (15) Even those Massachusetts "judges as free, impartial, and independent as the lot of humanity will admit" (16) could be removed upon the address of both houses of the state legislature. (17) In emphasizing judicial accountability to state legislatures, early state constitutions "represented the culmination of what the colonial assemblies had been struggling for in their eighteenth-century contests with the Crown." (18)

   State judges in the decades after independence might have been appointed by the executive, by the legislature, or by some combination of the two, but state legislatures generally dominated judicial selection. (19) This legislative dominance served republican ends. In most states, only legislators were directly elected by the people, and this fact, combined with their short term of office, encouraged the belief that the legislature embodied the people, whereas other branches did not. (20) Given this understanding, legislatures seemed the safest repository of the appointment power. (21) In addition, legislative dominance was a response to Americans' suspicion of executive power in general and of the executive appointment power in particular. (22) As Gordon Wood has noted, "the power of [executive] appointment to offices" was perceived as "the most insidious and powerful weapon of eighteenth-century despotism," (23) so none of the initial state constitutions gave the governor alone the power to appoint judges. (24) By the close of the eighteenth century, Delaware (1792) and Pennsylvania (1790) did authorize unilateral gubernatorial appointment, (25) but seven states continued to lodge the appointment power exclusively in the legislature. (26) The remaining states allowed the governor to appoint judges but required that appointees be confirmed by an executive council or the legislature. (27) Even where governors participated in the selection process, their control over the composition of the bench was quite limited. (28) In several states, the governors were largely creatures of the legislature, with legislatures choosing governors for short terms and with governors dependent upon the legislature for their continuation in office, (29) and this undoubtedly influenced their choices.

   Once selected, judges remained under legislative scrutiny. It has been noted that the Revolutionaries intended to increase legislative interference in the court structure and in judicial functions. (30) During the colonial era, popular assemblies regularly "restored losing litigants to the law" by granting them new trials, thereby checking abuses by unelected judges. (31) After independence, those who lost in court might still appeal to the legislature for redress and legislators could order new trials or pass private bills that provided them with the compensation denied them at trial. (32) This practice continued into the nineteenth century, with the Rhode Island Legislature overturning adjudicated verdicts almost until the Civil War. (33)

   Judges who issued unpopular rulings could be called before the legislature to explain their decisions. In 1786, for example, after the Rhode Island Supreme Court invalidated a law requiring creditors to accept paper money in payment for debts, the justices were summoned before the legislature. Although the legislature took no immediate disciplinary action, it only reappointed one of the justices when their terms expired. (34) When all else failed, a legislature might get rid of judges by enacting "ripper bills" that abolished the judges' positions or the court on which they sat, (35) because the structure of state court systems typically was not entrenched in the state constitution. Thus in 1807, after the Ohio Supreme Court struck down a law extending the jurisdiction of justices of the peace, the legislature passed a resolution depriving the offending justices of their positions when their terms expired. (36) New Hampshire twice legislated out of office all justices of its supreme court by repealing the statute that created the tribunal and establishing another court in its place. (37) In 1821, New York's new constitution reduced the membership of its supreme court from five to three and terminated the incumbents' positions when the constitution went into effect. (38) Similarly, in 1823, Kentucky abolished its supreme court and created a new one with new judges after the legislature failed to muster the two-thirds vote necessary to impeach those justices who had invalidated a law providing for debt relief. (39)

   Some state constitutions guaranteed that the people's representatives could control judges' continuation in office. Fewer than one-third of eighteenth-century state constitutions established short terms of office for judges. (40) In states with periodic reappointment, legislators largely determined whether judges would remain in office. (41) The remaining eighteenth-century state constitutions, reacting to British imposition of service during the pleasure of the Crown, provided for judicial tenure during "good behavior." (42) But even in the twelve states in which, by 1800, judges served during good behavior, legislatures scrutinized the judiciary. (43) Today, good behavior is understood as a synonym for life tenure. During the early decades of the Republic, in contrast, good behavior was understood as a standard of conduct enforceable by the legislature. (44) As a contemporary commentator noted, the nebulous character of that standard virtually invited legislators to apply it "according to disaffection on the one Hand; or Favour on the other." (45)

   The legislature might act against "misbehaving" judges through impeachment; the grounds for impeachment under early state constitutions were broader than those under the Federal Constitution. (46) States that defined impeachable offenses in their constitutions did so expansively: New York (1777) and South Carolina (1778) permitted impeachment for "mal and corrupt conduct;" (47) New Hampshire (1784) for "bribery, corruption, malpractice, or maladministration in office;" (48) and New Jersey (1776) for "misbehavior." (49) Other states declined to define--and thereby limit--the grounds for impeachment. For example, while the U.S. Constitution had limited impeachable offenses to "Treason, Bribery, or other high Crimes and Misdemeanors," Georgia (1789), Kentucky (1799), and Tennessee (1796) all provided for impeachment without...