The real constitutional problem with state judicial selection: due process, judicial retention, and the dangers of popular constitutionalism.

AuthorRedish, Martin H.
PositionIII. Popularly Based Retention Methods and American Constitutionalism through Conclusion, with footnotes, p. 33-58
  1. Popularly Based Retention Methods And American Constitutionalism

    Requiring judges to submit to popularly grounded methodologies to remain in office violates core constitutional values both in theory and in practice. In terms of constitutional theory, this pathology operates on both the micro and macro levels. (153) Micro constitutionalism involves the individual litigant's right to procedural due process. Macro constitutionalism, on the other hand, concerns the broad, foundational principles inherent in the Constitution--"the basic notion of limited government," with majoritarian branches and the will of the majority constrained by a binding, written, counter-majoritarian Constitution, enforced by an independent judiciary. (154) Linking the two is the perception of fairness, which is fundamental to both individual dignity and systemic, institutional legitimacy in a constitutional system that "holds itself out as promoting" equality and meaningful participation in its processes, as our justice system does. (155) But no matter how long a judicial term is made, there always will exist the possibility of a judge's concern about post-judicial employment. As a result, the threat to judicial independence will remain. Hence the only means of removing the possibly coercive input caused by judicial concern about continued employment is requiring life tenure.

    1. Appearance of Fairness

      The appearance of fairness is one of the most fundamental values underlying constitutional rights on both micro and macro levels. It matters not just to individual litigants, but to broader perceptions of systemic legitimacy. The public is more likely to trust and participate in a justice system that it sees as fair. (156) Conversely, if people believe otherwise, their respect for the rule of law may deteriorate. (157) To put the difference in more practical terms, even if a judge finds against you, the result is likely to be more acceptable if you can be sure he ruled on principle, not out of personal or political calculation. The decision might be the same one he would have reached otherwise, but the difference in appearance is enough to increase your trust in both the result and the system that produced it.

      Of all the values informing the due process guarantee, the perception of fairness "most clearly dictates use of a truly independent adjudicator." (158) Accuracy means little on its own if litigants have no confidence in the result. (159) Tumey v. Ohio is illustrative. (160) There, the Court invalidated the defendant's conviction for an offense not because the result was inaccurate, but because the procedure used to reach that result was itself unfair and, perhaps even more importantly, could never satisfy the appearance of fairness. (161) As long as the judge received payments only if he found the defendant guilty, the defendant would never be able to know for certain whether the judge ruled against him because the judge actually believed he was guilty or because of financial enticement. (162) An independent adjudicator was required to satisfy due process, independent of accuracy. (163)

      Post-Tumey cases up to and including Caperton have reiterated the importance of adjudication that appears fair. As the Court observed in In re Murchison:

      [O]ur system of law has always endeavored to prevent even the probability of unfairness....Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." (164) Because the appearance of fairness so depends on the presence of an independent adjudicator, it should come as no surprise that judicial retention elections endanger this due process value more than anything else. Studies suggest that elected judges modify their decisions because of electoral pressures. (165) Indeed, a judge may adapt her thinking without even realizing she is doing so, and thus reliance on something like recusal requests to address the problem falls woefully short. The point is that as long as processes of judicial retention exist, so too does the possibility that elected state judges will decide cases differently out of fear of losing their jobs. Thus, the appearance of unfairness is inextricably tied to the uncertainty of retention.

      Given the difficulty of separating actual from perceived bias in the electoral context, state judicial retention inherently violates the Constitution's guarantee of due process. Though a step removed from the remuneration at issue in Tumey, this financial motivation is direct and powerful enough to pose a structural threat. The prophylactic measure of ending state judicial retention and reelection is necessary to ensure independent adjudication in state courts, especially as state governments cannot justify such elections as a matter of necessity.

    2. "Micro" Constitutionalism: The Value of an Independent Adjudicator

      "Micro" constitutionalism centers on the need to preserve the dignity of the individual inherent in the liberal social contract via procedural due process, and the individual litigant's right in a democratic system. (166) Micro constitutionalism applies any time the state is in a position to deprive an individual of life, liberty, or property, including in every judicial proceeding, no matter how insubstantial or subconstitutional the issue involved. (167) It serves as a shield against the immense power of the state and an assurance that the Bill of Rights is not an empty promise. (168) More concretely, micro constitutionalism encompasses the procedural protections commonly included under the banner of due process. (169)

      The Supreme Court has long taken an instrumental view of procedural due process, holding that it is intended to protect persons "from the mistaken or unjustified deprivation of life, liberty, or property." (170) But the value and power of micro constitutionalism extend well beyond the mere desire for an accurate result. It also ensures the individual dignitary interests underlying the Constitution's guarantees (171)--the appearance of fairness, equality, and the chance to meaningfully participate in a proceeding in which one's rights are at stake. (172) Popularly based judicial retention threatens protection of all of those values because a judge deciding a case based on factors other than her view of the law and evidence is far less likely to reach an accurate result or treat the litigants fairly.

      The presence of an independent adjudicator is thus the most fundamental element of the micro constitutionalism embodied in the Due Process Clause. Without it, as one of us wrote many years ago, "[r]egardless of what other procedural safeguards are employed, the values of due process cannot be realized." (173) Indeed, "[t]he rights to notice, hearing, counsel, transcript, and to calling and cross-examining witnesses ... are of no real value ... if the decision-maker bases his findings on factors other than his assessment of the evidence before him." (174) For instance, "if the individual seeking to enforce his rights is black, and the adjudicator is racially prejudiced and would therefore never find in favor of a black person," other procedural guarantees mean nothing. (175) History further bolsters the case that the right to an independent adjudicator "constitutes the floor of due process;" such a right was "considered a crucial element of procedural justice by the common law, by those that established the law of the colonies, and, perhaps most important, by the Framers of the United States Constitution." (176)

      When one applies the standard of judicial neutrality dictated by the Due Process Clause to popularly based methods of judicial retention, the unconstitutionality of such methods should become obvious. It should not be difficult to see how pressure from a looming election could taint a judge's ability to reach accurate decisions in the cases before her. (177) This pressure could influence both the judge's positive and normative decision making, and perhaps more importantly, create a general atmosphere in which the judge's electoral concerns inevitably take priority over her desire to reach an accurate result. A judge who is concerned that finding for a particular litigant may upset voters and cause her to lose her job is no longer primarily concerned with accuracy. This also deprives the litigant of the chance to convince the decision maker of the merits of his case because the judge's mind is already largely closed. As described above, this electoral pressure differs from other personal biases because it is always a potential concern that is impossible to eliminate altogether. (178)

      Eliminating the practices of judicial reelection, retention, and reappointment would also augment the instrumental value of other due process safeguards. For example, the right to an oral hearing and the right to counsel mean little if the judge presiding over the proceedings is under externally imposed pressure to find against the litigant exercising those rights.

      Due process does not rest on a utilitarian desire for accuracy alone: it also encompasses "non-instrumental," dignitary values, such as the appearance of fairness, equality, and the chance to participate in a proceeding where one's rights are at stake. (179) These values are part of our constitutional tradition and run through a range of Supreme Court cases, notably in the criminal realm, and form the basis for decisions such as Tumey. (180)

      Though these values are worth pursuing for their own benefit, they also support instrumental goals, and likewise depend on the participation of an independent adjudicator. (181) For instance, state judicial elections threaten equality and participation, which reflect the individual's dignitary interest in having a chance to play a role in proceedings that affect...

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