We commend the Albany Law Review for focusing attention on the critical issues involved in judicial selection. Our country prides itself, justifiably, on being a nation of laws. But history tells us that the rule of law cannot survive without an independent judiciary. No matter how magnificent a court's building, no matter how dedicated its staff, and no matter how skilled the advocates who appear, if judges make their decisions for reasons other than as a faithful application of the law, the rule of law as we know and revere it does not exist. Judges must be free to apply the law without prejudice and without favoritism, free of improper outside or political influences, and unencumbered by the threat of removal from office when a decision required by the law does not meet with public or political approval. Our institutional framework, including the methods we use to select our judges, must assure our judges the freedom to render unbiased decisions.
The principle that judges must be protected from improper political and outside influences is not new to us. Indeed, our founding fathers recognized that the judiciary must be independent of the political branches of government. To that end, they drafted a federal Constitution designed to assure that Article III judges, who are appointed by the President and confirmed by the Senate, are not beholden to the political branches of government with respect to their tenure and salary. Emerging democracies across the globe have adopted this once-revolutionary approach, which structurally restrains the political branches from impulsive abuses of power that might otherwise occur.
The history of judicial selection in the states, on the other hand, reveals considerable experimentation. Today, states use various methods to select their judges: partisan and nonpartisan elections; appointment by legislatures or by governors, with and without legislative confirmation; and "merit selection," usually combined with retention elections in which the voters decide whether a judge should be retained on the bench. Most of these variations were unknown at our country's founding. Each original state adopted a judicial appointment approach designed to insulate judges from the political process; no original state selected judges through a popular elective process. In the nineteenth century, however, many states, impacted by the teachings of the populist movement, chose to elect some or all of their judges. Unlike other democratic innovations devised in the United States, the decision to elect judges has not found broad acceptance in other countries.
Popular election of judges, which introduced campaign cash to the courtroom, soon spawned questions about the impartiality and qualifications of judges chosen through an electoral process. In response to a series of bitter judicial elections that were accompanied by charges of patronage politics and corruption, a number...