Recent proposals regarding state and federal judges serve to remind us that, although judicial accountability is essential to the preservation of judicial independence, heavy-handed programs implemented under the banner of "accountability" are the enemy of the kind of independence that we should want in our judges.
In 2001 AJS and the Brennan Center for Justice co-sponsored an interdisciplinary conference on judicial independence, some fruits of which were published the following year (see Editorial, Judicial independence at the crossroads, May-June 2002). Among the many useful contributions of this work were the reaffirmation that (1) judicial independence and judicial accountability are not themselves social or political ends, but rather means to other ends, (2) the two concepts are not at war with one another, but rather different sides of the same coin, and (3) neither judicial independence nor judicial accountability is a monolith, insofar as the proper mix between them may depend upon what a particular polity wishes to secure from its courts.
Recognition of the complementary relationship between judicial independence and judicial accountability is the reason why we have an AJS Task Force on Judicial Independence and Accountability. It is also why, whenever we discuss judicial independence, we endeavor to ensure that the measure of independence we champion is consistent with the degree of judicial accountability called for by the institutions, customs, and norms of the state or federal system in question. The same careful attention is called for when the focus is on the other side of the coin.
Recently a number of proposals have been made and programs implemented under the banner of "judicial accountability." Consideration of these proposals and programs, which concern federal judges and the judges in a number of states, offers a useful way to illuminate the partnership between accountability and independence and thus to distinguish means that would foster that partnership from those which might destroy it.
We have commented on the unfortunate ambiguity of a speech in May by the chair of the House Judiciary Subcommittee (see Editorial, Listening to Judge Lefkow, May-June 2005). The ambiguity we deplored concerned the ambit of the "behavior" that the chair envisioned as an appropriate object of "punishment," ambiguity that was particularly unfortunate in a speech discussing the possible creation of an "Office of Inspector General for the Federal Judiciary." The speech uses the banners of judicial accountability and legislative oversight to propose or justify a variety of measures without making clear to which of a set of perceived problems-from "judicial activism," to judicial misconduct, to financial mismanagement-those measures are addressed. The analytical sloppiness of the speech, whether or not intentional, can only promote confusion and insecurity. Because an excess of accountability means inadequate judicial independence, there is no room for ambiguity and every reason to guard against avoidable insecurity.
"Accountability" is also the professed goal of various efforts made by elected officials and interest groups to identify judges or judicial aspirants who support, and those who oppose, the legal positions that they favor. Some of these efforts, such as questionnaires to candidates for appointment, election, and/or retention seeking pre-commitment on issues likely to come before the courts, are so obviously inimical to judicial independence that we can only wonder what the majority of the Supreme Court in Minnesota v. …