[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)
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.
II. 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 …