Judicial diversity: where independence and accountability meet.

• Author: Wynn, James Andrew, Jr.
• Position: Perspectives: Judicial Elections Versus Merit Selections

A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice.... Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.

--Justice Anton Scalia (1)

1. INTRODUCTION

   Unquestionably, the subject of judicial selection continues to be a hot topic for legal forums, bar journals, and law reviews. The challenge continues to be how to balance the competing interests of judicial independence and judicial accountability. For while judicial independence connotes an institutional immunity from inappropriate extra-legal pressures in the decisionmaking process, judicial accountability seeks to comport with the democratic ideal of responsiveness to public opinion. Thus, in the federal system, lifetime tenure and salary protection are said to enhance judicial independence, whereas in thirty-nine states, popular elections (partisan, non-partisan, and retention) are thought to further the aim of judicial accountability.

   This article makes the argument that in a diverse society, the ideals sought by the independence/accountability dichotomy are dependant upon and subsumed by the attainment of judicial diversity. Fundamentally, judicial independence is predicated on an impartial judge, and judicial accountability is predicated on notions of popular representation. In the absence of diversity, the goals of obtaining an impartial and representative judiciary are credibly challenged.

   As Justice Scalia stated for the majority in Republican Party v. White, lack of judicial predisposition is neither desirable, nor possible. Taking that statement as true, it seems evident that a judge's predisposition is inextricably bound to the judge's racial, gender, and ethnic experience. Likewise, a judge's representative capacity is contingent on the ability to hear, understand, and articulate diverse views. Thus, without substantive ideological and narrative judicial diversity, any discussion touting the relative advantages to accountability or independence of elective or appointive judicial selection methods is largely irrelevant. As Deborah Goldberg, Director of the Brennan Center's Democracy Program, notes "[w]hether judicial diversity will be helped or harmed by a movement to non-elective systems is ... unclear." (2) It is clear, however, that efforts to obtain a diverse bench, whether in a system of merit selection or popular election, foster the complementary interests of judicial independence and judicial accountability.

2. THE FORCED DICHOTOMY OF INDEPENDENCE AND ACCOUNTABILITY

   In the legal literature, judicial independence and judicial accountability are at war. (3) According to this collective history, a fundamental conundrum in our constitutional republic is the method of creating a judicial branch that is both sufficiently insulated from republican concerns--to remain faithful to the Constitution--and democratically accountable. This section will describe this groundwork in anticipation of a discussion of judicial diversity.

   1. Judicial Independence

      Judicial independence is a foundational principle of our Constitution. The two structural arguments for its importance are straightforward. First, in a constitutional republic the judiciary must be independent from the other branches of government. The Constitution serves as the sovereign will of the people: the Constitution is the definition of government. (4) Thus, as often noted, the executive and legislative branches are precluded from acting in the absence of an express or implied constitutional grant of authority. In this system of government, the judiciary is a constitutional priesthood loyal to the sovereign will--the Constitution--in the face of majoritarian excess, executive encroachment, and legislative self-aggrandizement. (5) Although, seemingly, it is counterintuitive to ordain the sovereign will at the expense of the popular will, this is central to a constitutional republic: constitutional guarantees are empty if subordinated to extraconstitutional passions. (6) Thus, judicial independence "advances democracy by ensuring that the majority's long-term, constitutive values are represented in the heat of the moment." (7)

      Second, judicial independence is predicated on a neutralizing distance between the judge and the legal dispute. Judicial impartiality is not an abstract notion for litigants. For instance, at the time of this country's founding, the Declaration of Independence expressly complained of the judiciary's bias for the crown, lamenting that King George III had "made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." (8) Thus, under our federal scheme, judicial independence is attained by insulating judges from electoral pressure; (9) indeed, federal judges need not fear losing their jobs or salaries even if their decisions contravene the popular will as expressed in congressional statutes, presidential orders, the press, and/or mass demonstrations.

      For proponents of judicial appointments, judicial impartiality in the adjudicative process is the most important aspect of judicial independence. Impartiality is the rule of law. In the words of Supreme Court Justice Anthony M. Kennedy: '"The law makes a promise of neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob."' (10)

   2. Judicial Accountability

      Throughout the last two centuries, (11) the judiciary's (hypothetical) ambivalence to the popular will (12) has ignited the populist argument that the judiciary's electoral insulation is antithetical to democracy: a remnant of entrenched British aristocracy. (13) A recent article by Pennsylvania's AFL-CIO leadership crystallizes this argument:

      [T]he merit selection (political appointment) process [is] a wonderful public relations gimmick for disguising a power shift from the people to an elite crew--a completely undemocratic process that empowers non-elected lawyers and others to select judges with little or no accountability to the people. Our democratic tradition is built on the right to vote and those who seek to abolish that right should be required to meet a heavy burden of overwhelming evidence. If the issue is close it ought to be resolved in favor of this precious right. Not to value this fundamental right highly would present a serious erosion of our democratic form of government. (14) Furthermore, the proponents of judicial accountability argue that judges are de facto political actors. "According to them, judges make policy daily.... [and,] with respect to some matters, judges have more political power than legislators, because they have the ability to thwart the will of the majority." (15) For these scholars, the power of judicial review, coupled with the judiciary's lack of electoral accountability, "threatens the concept of representative democracy." (16) These arguments have proven successful: thirty-nine states have chosen, through constitutional convention, amendment, or otherwise, to use election as a method of selecting appellate judges. (17)

   3. An Escalation in Hostilities

      In the wake of the Supreme Court's decision in Republican Party v. White, the tensions between the proponents of judicial appointment and judicial election reached a crescendo. In White, the Supreme Court held that the thirty-nine states electing their judiciary were precluded from prohibiting judges from announcing their views on disputed legal and political issues. Some interpret this holding to mean that states may not make distinctions between the campaign speech of judges and other politicians. (18) Implicitly, this means that in the states with judicial elections, in addition to announcing their views, judges may also pledge their support for controversial issues ranging from abortion, the death penalty, and medical malpractice liability caps. (19) Thus, under an expansive interpretation of White, judicial elections are perceived by some to overtly attack the impartiality and separation of powers considerations of judicial independence--at least as historically conceived. This transformation of judicial elections into a form indistinguishable in cost, rhetoric, and partisanship from executive and legislative elections has led many scholars, judges, and courtwatchers to condemn the Supreme Court and call for the dismantling of the elective system in favor of judicial merit selection. (20) Of course, advocates of judicial elections note that federal judicial appointments are a modern prisoners' dilemma (21)-lest we forget Fortas, Bork, and Estrada. (22)

3. JUDICIAL DIVERSITY, INDEPENDENCE, AND IMPARTIALITY

   The arguments for judicial appointments are invariably juxtaposed against the danger judicial elections pose to impartiality. Consider, for example, the following analogy:

   Umpires are the trial court judges of the baseball diamond. Now imagine if umpires were elected and forced to fundraise. Like lawyers, major league baseball players would have a vested interest to contribute money to the campaigns. Now, let us say your favorite player came to bat and was called out on a questionable third strike. How much confidence would you have in that call if you knew, or later discovered, that the pitcher gave $10,000 to that particular umpire's election campaign? (23) To be sure, the simplicity of this analogy implies impartiality is derivative of financial independence. Nonetheless, familiarity is the bedfellow of bias: judicial decisionmaking is subject to being underinclusive when the decision-makers lack diversity.

   Indeed, the American judiciary is disproportionately white and male. (24) These white men disproportionately make judgments affecting African-Americans, women, and other minorities. (25) Scholars have detailed how this disparity between the judges and...