Judging judges: securing judicial independence by use of judicial performance evaluations.

• Author: White, Penny J.

INTRODUCTION

The current national debate surrounding judicial independence arguably began in 1996 when both presidential candidates engaged in disingenuous political rhetoric about United States District Judge Harold Baer. (1) The national discussion about judicial independence (2) is by no means a new discussion. It dates back to the early common law, (3) the formation of the American democracy, and the constitutionalization of the American judicial system.

When the colonists declared their independence from England, they compiled a list of grievances setting forth justifications for their actions. One of the listed grievances against King George III in the American Declaration of Independence concerned the King's control of the British judiciary. Categorizing the King's control of the British judiciary as an obstruction of justice, the patriots declared that "[the King] has made Judges dependent on his Will alone for the Tenure of their Offices, and the Amount and Payment of their salaries." (4) Control of the judiciary, however, was not a creation of King George III's reign. (5) It predated his reign by decades, and in fact had been somewhat ameliorated prior to George III's reign when King James II was deposed during the Glorious Revolution of 1688. (6)

Nonetheless, at the time of the American Revolution the founders of the new country remained concerned about a controlled judiciary. (7) Although comparatively little time was spent debating and structuring the judiciary in the proposed three-branch government, the proposed Constitution provided for permanent tenure for federal judges "during Good Behaviour" and forbid any reduction in federal judicial salaries. (8) The federal judges were empowered to hear a large variety of cases, although Congress maintained the authority to expand or contract the size as well as the jurisdiction of the courts. (9) Additionally, the intermingled tripartite system of government with its "great organizing principle, the separation of powers" doctrine, (10) reiterated the commitment of the founders to a separate and independent judiciary.

The commitment to the formation of a new government with an independent judiciary in no way assured that the doctrine of judicial independence would not be challenged. From the very beginning of the American judiciary (11) until the Judge Baer fiasco in 1996 and after, (12) the doctrine has been questioned, challenged, and at times, fiercely opposed. (13)

1. THE ABSOLUTE NECESSITY OF JUDICIAL INDEPENDENCE

   One who clearly understands judicial independence cannot comprehend how it could be opposed. A judiciary that is not independent of the other branches of government is subject to their control. Judicial decisions would be influenced, if not dictated, by political pressures, threats, and intimidation. A nation whose judiciary was controlled by the legislative or executive branch would offer no stability to its citizens or corporations as to their legal rights or responsibilities.

   The effect of a controlled judiciary is often illustrated by reference to intrusion upon personal liberties. The effect of a dependent judiciary on commercial interests, however, would be equally devastating. Consistent enforcement of contract rights, zoning laws, and employment regulations are crucial to business development. The coexistence in America of a stable, independent court system and a thriving national economy is hardly coincidental. Investors and developers cannot risk doing business in an unstable legal environment where their legal rights depend on who is in power. They depend on uniform application of the law by a judiciary that is not swayed by either majority opinion or political power, but is instead guided by precedent and the rule of law.

   If no free-enterprise capitalist could sensibly oppose judicial independence, why do so many of our national leaders assert positions in direct conflict with it? The cynical answer is that the assertions are pure political rhetoric gauged to be popular with the voters that, although dangerous to freedom and prosperity, are nonetheless successful because of the dearth of understanding of the American judiciary and its role in our society. A less cynical, but even more frightening answer is that the dearth of understanding extends beyond the realm of average citizens and includes national political leaders. (14)

2. DEFINING THE CONTROVERSY: JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

   Lawyers and judges, who should understand the significance of judicial independence, (15) cannot attribute all of the blame to ignorance and indifference. The judicial system itself creates some of the confusion.

   In the vast majority of states, judges are subject to the vote (16) either for initial selection or retention. (17) In most cases, citizens are given the right to vote for judges just as they are for legislators, governors, and presidents. In those few states where citizens neither vote directly for judges nor decide whether to retain them, judicial selections generally occur through executive or legislative appointment with sitting judges generally subject to periodic legislative or executive approval. In only three states is the judiciary granted quasi-life tenure after appointment, (18) without subsequent review or retention. While all federal judges are appointed for life, the congressional confirmation process is certainly not apolitical. (19)

   To the electorate, it must seem that judges who campaign for their positions (20) are political candidates. It follows that judges who raise funds, advertise, and seek support from voters (21) must make promises of future conduct and assert their beliefs and opinions in political platforms.

   Just as other political candidates are politically accountable to the voters, the citizenry may believe that judges should be accountable. Political accountability requires adherence to one's platform, fulfillment of one's promises, and responsiveness to public sentiment. Failure to display political accountability is a justification for campaigning against, voting against, and replacing an office holder. If a judge is viewed as "just another politician" who is expected to make and keep promises and to respond to public pressure or sentiment, justice is unlikely. The view of a judge as a politician is inconsistent with the constitutional and statutory obligations of American judges required to preserve an independent judiciary. (22)

   If the principle of judicial independence is inconsistent with the typical view of political accountability, does it follow that independence and accountability are concepts in conflict? If so, recent criticisms of unaccountable judges and movements to "reign in" an imperialistic judiciary (23) might have merit. But the obvious answer is that independence and accountability are not conflicting principles. Rather, they stand in juxtaposition to one another. Judges are accountable. Their accountability, however, is not political accountability to individuals, party platforms, majority preferences, or public pressure. A judge's accountability is to the law.

3. CLARIFYING THE CONCEPT OF JUDICIAL INDEPENDENCE

   The suggestion that judicial independence is incompatible with judicial accountability is premised on a misunderstanding or misinterpretation of judicial independence. The correct interpretation, provided by its historical beginnings, is that judicial independence is the independence of judges in their judicial capacity from control by inapproriate external forces, pressures, or threats. (24)

   More, and occasionally, less eloquent explanations of judicial independence have been offered. An early Supreme Court decision defined judicial independence as the freedom of a judge in deciding a case to "act upon his own convictions, without apprehension of personal consequences." (25) Similarly, a federal district judge defines judicial independence as "[t]he freedom of judicial officers to decide particular cases without ... consideration of ... preferment or retribution." (26) The American Judicature Society, long a promoter of judicial independence, describes the principle as one that frees judges "[t]o act in the best interests of justice rather than be beholden to political obligations." (27) Others suggest that to be independent a judge need only be unbiased.

   The common denominator in all accurate descriptions of judicial independence is that judicial independence does not serve to remove a judge from accountability. Rather, it serves to remove a judge from accountability to the wrong sources.

   Judicial independence is not the freedom of a judge to decide cases based on personal whim or caprice, nor is it the freedom of a judge to decide cases based on personal viewpoints of what the law ought to require. A judge remains accountable to the fair application of the law regardless of the judge's endorsement of or belief in the law.

4. DEFINING JUDICIAL ACCOUNTABILITY

   Accountability at its simplest, means answerability or responsibility. In the context of judicial accountability, the question is to whom or what are judges answerable and responsible.

   Those who espouse a commitment to judicial independence often speak in terms of judicial accountability to the "rule of law." (28) Conversely, those who would undermine the importance of judicial independence argue for accountability to the citizens or constituents. (29) Accountability to something as esoteric and undefined as the "rule of law," they argue, is no accountability at all. (30) It is more meaningful to attempt to identify to whom or what in particular a judge should be accountable, than to debate whether the "rule of law" is precise enough to allow accountability to it.

   To whom should a judge answer? Posing and probing alternative responses to that question simplifies the answer. Assume that a judge is accountable to his or her "citizens" or "constituents." How would those groups be identified? (31) What...