Reconciling the judicial ideal and the democratic impulse in judicial retention elections.

• Author: Caufield, Rachel Paine
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

[Judges] rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times. (2)

--Warren E. Burger

You can have many different selection systems, but the bottom line has to be a system that, once the judge takes office that judge will feel that he or she is to decide the case without reference to the popular thing or the popular will of the moment. (3)

--Stephen Breyer

1. INTRODUCTION

   It is hardly novel to suggest that judicial elections, including retention elections, illustrate profound and irreconcilable tensions in the American governmental scheme. (4) The guiding political philosophy of liberal democracy dictates that judges be insulated from popular will and therefore remain free to adhere to the law, regardless of how unpopular such adherence may be. Complete independence would permit judges to be reckless in their use of the law as a tool of power. Complete accountability would render the rule of law, and the protections it affords to political minorities and others who lack political power, nonexistent. This elusive ideal of "judicial independence" has been overwhelmingly endorsed by American citizens who consistently report that judges should be faithful to the law and should remain "above politics." (5) Yet, even as we recognize that the judicial branch serves a distinct function within a democratic governmental system, we also fear any unchecked power, including judicial power.

   It is unlikely that most Americans spend much time or energy contemplating these theoretical dilemmas. A Gallup poll found that 69% of American citizens report having a "great deal" or "a fair amount" of trust and confidence in the federal judiciary. (6) At the same time, a survey found that 60% of those polled in 2008 said that Supreme Court Justices have their own political agenda, and only 23% believe they remain impartial. (7) Similarly, a 2002 survey of Pennsylvania voters found that 70% thought it "very important" that a judge be "independent of politics," yet 70% thought it "very important" that judges be "representative of the values of their community." (8) That these two commitments to judicial independence and judicial accountability so easily and commonly take root side by side is evidence of our collective ability to reconcile divergent philosophical ideals. (9) There is, by any account, a mismatch between the judicial ideal and the democratic impulse.

   Albert Kales was well aware of this mismatch as he put forward the plan that we now refer to as "merit selection." (10) By creating a diverse and ideologically balanced commission to review applications and make recommendations, (11) the initial selection of a judge was to be based exclusively on the legal merit of the individual rather than partisan loyalties, public approval, or political ability. By instituting periodic, uncontested retention elections, (12) the public would have an opportunity to evaluate sitting judges and remove those who fail to satisfy public expectations of faithful adherence to the law, ensuring a measure of public accountability divorced from the vagaries of partisan politics. The plan was thought to be a compromise between judicial independence and judicial accountability, balancing the two incompatible political goals in a workable (though undeniably imperfect) compromise.

2. THE DEBATE OVER RETENTION ELECTIONS

   Nearly a century after Kales proposed the merit selection and retention system, today's retention elections remain controversial in both theory and practice. (13) The unavoidable conflict between the ideal of judicial independence and the ideal of democratic accountability is institutionalized in these "clumsy institutions." (14) To imagine that this conflict will be resolved in any practical way is to ignore the deep foundational importance of these two ideals. To state the conflict simply, we ask that judges be held accountable to the law by the voters. In doing so, we implicitly accept several problematic implications of this arrangement. First, we accept that there is a role for public input, even if that means diminished independence for our judges and judicial institutions. Second, we accept that the vast majority of voters lack the legal knowledge to hold judges accountable to the law. Absent the requisite legal knowledge to ascertain whether a judge has followed the law in any strict sense, voters must rely on information that is easily available and understood. Third, we realize that no system of judicial selection is perfect, and the inherent tension that exists in retention elections characterizes all judicial elections.

   Before addressing the ways that we can attempt to resolve the difficulties of judicial elections, it is worthwhile to assess retention elections on their face. By introducing retention elections as a central component of the merit selection (and retention) system, Kales, the American Judicature Society, and the American Bar Association believed that judges would remain accountable even absent contested elections. (15) Critics often charge that retention elections are ineffective in achieving an appropriate level of accountability. These charges generally come in one of two forms. (16) First, one common critique is that few judges actually lose a retention vote, and, therefore, retention elections do not serve their intended purpose of removing those judges who are either out of step with public opinion or, more troubling, proving to be in competent jurists. (17) A second critique argues that merit selection, coupled with retention elections, removes public input by "taking away the right to vote." (18) In other words, some argue that retention elections do not foster the same kind of meaningful public choice that contestable elections offer.

   The first charge relies on an assumption that elections are only serving their intended function when they remove incumbents from office. It is true that most incumbent judges who are subject to retention will win another term in office. of the 6306 state court judges who were up for retention between 1964 and 2006, only fifty-six (less than 1%) were defeated. (19) But there is nothing inherently wise or virtuous about removing sitting judges from office. Nor is the value of an election dictated by the outcome. It is worth remembering the high rates of reelection for U.S. House incumbents. By constitutional design, members of the U.S. House are supposed to be the most direct representatives of the public will. In the case of House incumbents, there are no philosophical conflicts between the function of the office and the accountability to the public's policy wishes--the two are directly and explicitly related. Yet House incumbents are often reelected at a rate that is nearly comparable to state judges standing in retention elections. In the 1998 congressional elections, for example, only 6 of 401 House incumbents (1.5%) lost their seat. (20) Although this high rate of reelection for House incumbents has garnered attention and concern among scholars, there has been no assumption that the electoral mechanism itself has failed, that political parties should be more (rather than less) involved, or that more public campaign speeches or special interest money and advertising would improve the system. (21) Yet opponents of retention elections seem to suggest that these features of contested elections would not only improve the accountability of the judiciary but would so dramatically improve accountability as to warrant the intrusion into the unique role of the judiciary within a liberal democracy. (22)

   Similarly, some critics of merit selection and retention elections allege that contested elections provide a means for voters to choose who will serve as a judge (the incumbent or the challenger), and this ensures that the judge will be more directly aligned with the interests of the public. Furthermore, critics argue that, even if the incumbent loses a retention election, the replacement will be chosen through a merit selection process, with little public input or control over the process, further minimizing the promise of representative jurists. (23) Those who favor contested elections, therefore, often base their claim on the premise of increased voter choice within a representative democracy. But even in those states that use contested elections, the vast majority of judicial seats are uncontested; voters have no choice but to retain an incumbent judge, regardless of job performance. Since 2000, 78% of contestable circuit court elections in Missouri have been uncontested. In Kansas, 85% of all elections for district court and magistrate positions have been uncontested. (24) In Louisiana, 74% of judicial elections from 2000-2002 were uncontested, with only 13% of incumbents facing a challenger in their bid for reelection. (25) Even more, the Public Affairs Research Council of Louisiana makes special note of the fact that ten non-incumbents won an initial term on the bench without offering voters any other choice. (26) At the very least, retention elections provide voters with the option of voting an incumbent judge out of office should the incumbent judge's job performance warrant removal. (27) To dedicated adherents of judicial accountability, the guarantee that voters will have the opportunity to evaluate a sitting judge and make a collective decision about whether to retain a judge should make retention elections preferable to uncontested contestable elections.

   Critics of retention elections are quick to dismiss their effectiveness in guaranteeing judicial accountability, either because incumbents are only rarely removed from office or because voters deserve a greater role in the process. These critiques, however, fall flat. While retention elections may be imperfect mechanisms of accountability, the alternative--contestable (and contested) judicial elections--fares no better at achieving a balance between...