WITHOUT FEAR OR FAVOR

Judicial Independence and Judicial Accountability in the StatesBy G. Alan Tarr

Stanford University Press

Copyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-6040-9

Contents

Introduction........................................................................................11 Creating and Debating Judicial Independence and Accountability....................................82 Institutionalizing Judicial Independence and Accountability.......................................383 The Changing Face of State Judicial Selection.....................................................684 Analyzing Judicial Independence and Accountability................................................905 Reconsidering Judicial Elections..................................................................1226 Ensuring Judicial Independence and Accountability in the Twenty-first Century.....................151Notes...............................................................................................181Bibliography........................................................................................227Index...............................................................................................257

Chapter One

Creating and Debating Judicial Independence and Accountability

CURRENTLY THE CONFLICT IN THE STATES OVER JUDICIAL INDEPENDENCE and accountability focuses on judicial selection and tenure. Historically, however, the debate in the states has been far broader, a continuing constitutional conversation about the role of courts and judges in a republican polity. This conversation has involved the character of the judicial function and the place of legal professionals and laypeople in the administration of justice. It has also addressed from whom judges must be independent and for what purposes, to whom they should be accountable, and how that might be accomplished without jeopardizing independence. The states have tried various answers to these questions, and even states that resolved these issues at one point in time later revisited them. Simply put, the history of judicial independence and accountability in the states has been not a steady progression toward a single ideal but rather a record of competing and diverse conceptions of independence and accountability, with the prevailing understandings changing over time and among the states. This chapter traces the conflict over the contested concepts of judicial independence and judicial accountability from the founding era to the mid-nineteenth century. Chapter 2 extends the analysis into the twentieth century with particular emphasis on judicial selection and judicial tenure, and Chapter 3 analyzes the current debate. Political practice and political debate in the states highlight the complexities of judicial independence and judicial accountability and, in so doing, provide the basis for understanding and assessing current claims and arguments.

Independent of Whom?

Constitutional Arrangements

Before the American Revolution, colonial governors, selected by the Crown, appointed judges, raising concerns that those selected might be biased in favor of royal interests. Those receiving these patronage appointments served at the pleasure of the Crown rather than, like their counterparts in Britain, during good behavior, increasing fears that they might "pronounce that for law, which was most agreeable to the prince or his officers." Thus, the issue of judicial independence first arose in America in reaction to excessive executive control over—and possible manipulation of—the administration of justice. Thus the Declaration of Independence charges the king with "refusing his assent to laws for establishing judiciary powers," with making "judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries," with "depriving us in many cases of the benefits of trial by jury," and with "transporting us beyond seas to be tried for pretended offenses."

The Declaration's indictment of the Crown, it should be noted, is framed not in terms of judicial independence but in terms of popular access to justice, understood as encompassing both the availability of judicial forums ("refusing his assent to laws establishing judiciary powers") and proper administration of justice within those forums. Proper administration of justice in turn required that trials be presided over by impartial magistrates (not "judges dependent on his will alone"), in venues subject to public scrutiny (not "beyond seas"), and with independent decision-makers who could be trusted to render impartial verdicts (not "depriving us in many cases of the benefits of trial by jury"). Insofar as the Declaration addresses judicial independence, it emphasizes freeing judges from subservience to an unaccountable executive whose interests differed from those of the general public. The Declaration thus left open whether making the judiciary answerable to the people, either directly or through their elected representatives, posed the same problems for the rule of law or for the impartial administration of justice. Or, put differently, it left open the relationship between republicanism and judicial independence.

Some early state constitutions contain stirring rhetoric on judicial independence. The Massachusetts Declaration of Rights of 1780, for instance, proclaimed it "the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit," and the Maryland Declaration of Rights of 1776 noted that "the independency and uprightness of Judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people." Although proponents of judicial independence never tire of quoting such provisions, the institutional arrangements under eighteenth-century state constitutions emphasized judicial accountability to state legislatures, as "short terms with election and reelection voted by the same lawmakers who set rates of compensation and paid their salaries made judges more dependent than independent." Indeed, those Massachusetts "judges as free, impartial, and independent as the lot of humanity will admit" could be removed upon a vote of two-thirds of the state legislature. In emphasizing judicial accountability to state legislatures, early state constitutions "represented the culmination of what the colonial assemblies had been struggling for in their eighteenth-century contests with the Crown."

State judges in the decades after Independence might be appointed by the executive, by the legislature, or by some combination of the two, but state legislatures generally dominated judicial selection (see Table 1.1). This legislative dominance is explicable on republican grounds. In most states, only legislators were directly elected by the people, and this—combined with their short term of office—encouraged the belief that the legislature embodied the people, whereas other branches did not. Given this understanding, legislatures seemed the safest repository of the appointment power. In addition, legislative dominance was a response to Americans' suspicion of executive power in general and of the executive appointment power in particular. As Gordon Wood has noted, "The power of [executive] appointment to offices" was perceived as "the most insidious and powerful weapon of eighteenth-century despotism." Thus, none of the initial state constitutions gave the governor acting alone the...