Without Fear or Favor: Judicial Independence and Judicial Accountability in the States

Without Fear or Favor: Judicial Independence and Judicial Accountability in the States

Without Fear or Favor: Judicial Independence and Judicial Accountability in the States

Without Fear or Favor: Judicial Independence and Judicial Accountability in the States

Synopsis

The impartial administration of justice and the accountability of government officials are two of the most strongly held American values. Yet these values are often in direct conflict with one another.

At the national level, the U.S. Constitution resolves this tension in favor of judicial independence, insulating judges from the undue influence of other political institutions, interest groups, and the general public. But at the state level, debate has continued as to the proper balance between judicial independence and judicial accountability. In this volume, constitutional scholar G. Alan Tarr focuses squarely on that debate. In part, the analysis is historical: how have the reigning conceptions of judicial independence and accountability emerged, and when and how did conflict over them develop? In part, the analysis is theoretical: what is the proper understanding of judicial independence and accountability?

Tarr concludes the book by identifying the challenges to state-level judicial independence and accountability that have emerged in recent decades, assessing the solutions offered by the competing sides, and offering proposals for how to strike the appropriate balance between independence and accountability.

Excerpt

The charges are familiar. Conservative critics insist that judicial activism is rampant, with liberal judges “legislating from the bench” on social policy issues, such as abortion and same-sex marriage, ignoring long-standing community sentiment on issues such as the pledge of allegiance and school prayer, and “making law rather than enforcing it” in overturning the convictions in criminal cases. For these critics, the solution is obvious. Out-of-control judges must be held accountable for their overreaching, so that self-government and the rule of law can be restored and “judicial dictatorship” ended. Indeed, some wish to go further. As the chief of staff for Oklahoma Senator Tom Coburn declared, “I don’t want to impeach judges. I want to impale them.”

Equally familiar are the counterclaims. Harsh criticism of judges and their rulings allegedly galvanizes public frustration over hot-button issues, so this “pernicious rhetoric” must stop, lest it erode the public’s confidence in judicial impartiality and threaten the rule of law. Legislative steps to curtail judicial power are portrayed as attempts to intimidate judges and threaten their independence. Efforts to hold state judges electorally accountable for their rulings are condemned for the same reasons. So too are judicial election campaigns, which purportedly promote a politics of “slogans and thirtysecond television spots singularly inappropriate to the evaluation of judicial candidates.” Even inquiries into the political views and legal perspectives of judges before they ascend the bench are criticized as an American version of . . .

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