Judicial selection reconsidered: a plea for radical moderation.
Author | Geyh, Charles Gardner |
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RETHINKING JUDICIAL INDEPENDENCE FOR COURTS INFLUENCED BY LAW AND POLITICS II. THE IMPLICATIONS OF RETHINKING JUDICIAL INDEPENDENCE FOR JUDICIAL SELECTION III. ISOLATING CORE INDEPENDENCE PROBLEMS AND MARGINALIZING DISTRACTIONS A. The Re-Selection Problem B. The Campaign Finance Problem C. The Precommitment Problem IV. LOOKING FORWARD A. Re-Selection Reform B. Campaign Finance Reform C. Precommitment Reform CONCLUSION The judicial selection debate features a formidable list of seemingly unrelated issues that obscures the pivotal disagreement at the core of the dispute. (1) Proponents of contested elections ultimately proceed from a simple premise: Judges, like legislators, are policymakers who, in a representative democracy, should be accountable to the people they serve. (2) Within this camp, some make the point with irritation: Judges should exercise restraint and avoid policymaking but often do not. (3) Others are untroubled by judicial policymaking, which they regard as inevitable. (4) Either way, the argument against an appointed judiciary and for an elected one follows naturally and can be expressed as a syllogism: Unelected judges are unaccountable policymakers; unaccountable policymakers flout the rule of law and the will of the people; therefore, unelected judges flout the rule of law and the will of the people. Conclusion: Judges should be elected.
Proponents of appointed judiciaries proceed similarly, but from an opposing premise: Judges uphold the rule of law and, therefore, they need to be independent of those--including voters--who would interfere with their impartial judgment. (5) Judges are thus fundamentally different from policymakers in the "political branches" of government: They do not make rules of law but impartially apply rules made by the other branches. From there, the argument against an elected judiciary and for an appointed one is reducible to a competing syllogism: Judges must be independent of the electorate to uphold the rule of law and fulfill their constitutional role; elected judges are not independent of the electorate; therefore, elected judges do not uphold the rule of law and fulfill their constitutional role. Conclusion: Judges should be appointed.
In this Essay, I argue that it is no longer credible to contend that judges simply declare what the law is without regard to what they think the law should be. In difficult cases, judicial decisionmaking requires discretion that inevitably brings legal and extralegal considerations to bear. Conceding that judges are "policymakers" in some sense of the term, however, does not mean that judges are undeserving of independence denied public officials in the political branches. What judges do is different from what other public officials do in ways that justify a measure of autonomy for a quasi-legal, quasi-political judiciary. The net effect of these differences is to make the judge a unique kind of occasional policymaker, who does not represent a constituency in the same way as elected officials in the other branches.
Whether those differences warrant independence from the electorate in periodic elections is context-dependent, which helps explain why debate over the optimal system of judicial selection is inevitable, perpetual, and, in the minds of some, hopeless. Thinking about judicial selection with reference to the justifications for judicial independence developed here enables us to get past unproductive, all-or-nothing arguments about whether judges should be elected or appointed and instead isolate three core threats to independence so as to focus the debate: judicial re-selection, real or perceived dependence on campaign supporters, and candidate precommitments. I conclude with some thoughts on how to remedy these problems incrementally, without resorting to all-or-nothing arguments.
RETHINKING JUDICIAL INDEPENDENCE FOR COURTS INFLUENCED BY LAW AND POLITICS
I have argued elsewhere that the legal establishment has painted itself into a corner by defending the need for judicial independence with almost exclusive reference to an implausible claim--reminiscent of rigid nineteenth-century formalism--that independent judges do not make rules of law but merely follow them. (6) The public likes to hear judges say that they are like umpires with discretion constrained by rules akin to a strike zone, (7) and so judges oblige. (8) Even though the public might be heartened by judges who profess allegiance to the rule of law, survey data reveal that the public believes what social science research confirms: Judicial decisionmaking involves an exercise of discretion subject to legal and extralegal influences, including ideology. (9) Thus, when the legal establishment argues that judges should be insulated from external controls because such controls will contort the rule of law that independent judges are singlemindedly committed to upholding, it forces the judiciary to defend its independence with counterfactual claims that the public does not accept.
It is thus unsurprising that most people favor judicial elections, (10) presumably as a way to guard against judges running amok. There are three more plausible justifications for judicial independence that are not grounded in the somewhat otherworldly premise that independent judges make rulings of law unsullied by extralegal influences.
First, independent judges are better situated to respect the dictates of due process. The Fourteenth Amendment demands that judicial rulings be produced in a fundamentally fair process that includes notice and an opportunity to be heard before an impartial judge. (11) Tom Tyler and others have found that if litigants perceive the process as fair, they will more readily accept adverse outcomes in judicial proceedings. (12) Further, litigants will be more likely to perceive the process as fair if their proceeding includes an independent judge who is not subject to the control of outside forces that could contort the judicial process to achieve particular results. (13) That remains true irrespective of whether the independent judge's ruling involves an exercise of discretion influenced by what she regards as sound legal or public policy. (14)
Second, independent judges are better situated to administer justice on a case-by-case basis. Richard Posner and others have argued that most judges are pragmatists, (15) meaning that they seek the best results in a given case, informed by applicable law, facts, and policy. (16) Seeking justice in this commonsense way requires a familiarity with, and sensitivity to, case-specific information that presiding judges possess and interested outsiders lack. This information asymmetry between judges and interested outsiders justifies judicial independence from such outsiders to the extent necessary for judges to administer pragmatic justice--even though the pragmatic choices judges make can implicate a kind of judicial policymaking.
Third, independent judges remain better able to uphold the law. Even though scholars are preoccupied with hotly contested issues in the small percentage of cases decided by courts of last resort, in the vast majority of cases the applicable law is relatively easy to parse. In such cases, the role of judicial policymaking is greatly circumscribed. Accordingly, the accompanying need for judges to be independent from external sources of interference that could contort otherwise clear applications of the law is more obvious. (17) Even in difficult cases, questions of law do not cease to be questions of law merely because they cannot be answered with mathematical precision or because liberals and conservatives think differently about the answers. Although judges' policy preferences might influence their legal reasoning, judges generally appear to be sincere when they say they are following the law as they understand it to be written. (18) In this context, independence enables judges to give their best assessment of what the law is. We can concede that judges are influenced by their policy preferences and are thus "policymakers" in some sense of the term and still conclude that judges are a special kind of policymaker. They are special in that they are trained in law (in state systems, judges--unlike officeholders in the political branches--must be lawyers (19)), they are acculturated to the legal process from law school and years of practice, and they make decisions bounded by law as they understand it, even if that understanding is subject to ideological influence. Insulating judges from the influence of outsiders, who are unversed in law and indifferent to the law as long as they obtain preferred outcomes, thus promotes the rule of law, broadly defined.
In short, judges and legislators make policy in different ways. (20) When judges make policy-laden choices, they do so in the process of administering justice in cases where they have access to dispute-specific details the public lacks, their choices are constrained by applicable law, and they have an understanding of the relationship of the rights of parties relative to the public at large. Unlike legislators, judges do not represent the voting public as a single, clearly defined constituency. Rather, judges must be mindful of multiple and sometimes conflicting constituencies, which renders the term unhelpful and misleading when applied to judges. Those "constituents" include the people who appear before the judge as parties and whose rights are at stake, the people who ordained and established the constitutions judges uphold, the people who elect the legislators who write laws judges interpret, the people who are subject to laws judges interpret, and, in jurisdictions with elected judiciaries, the people who vote the judge into office. Moreover, unlike legislators, who are rightly partial to public preferences, judges swear to be impartial and are under an ethical duty to disregard "public clamor." (21)
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THE IMPLICATIONS OF...
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