A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice.... Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.
--Justice Anton Scalia (1)
Unquestionably, the subject of judicial selection continues to be a hot topic for legal forums, bar journals, and law reviews. The challenge continues to be how to balance the competing interests of judicial independence and judicial accountability. For while judicial independence connotes an institutional immunity from inappropriate extra-legal pressures in the decisionmaking process, judicial accountability seeks to comport with the democratic ideal of responsiveness to public opinion. Thus, in the federal system, lifetime tenure and salary protection are said to enhance judicial independence, whereas in thirty-nine states, popular elections (partisan, non-partisan, and retention) are thought to further the aim of judicial accountability.
This article makes the argument that in a diverse society, the ideals sought by the independence/accountability dichotomy are dependant upon and subsumed by the attainment of judicial diversity. Fundamentally, judicial independence is predicated on an impartial judge, and judicial accountability is predicated on notions of popular representation. In the absence of diversity, the goals of obtaining an impartial and representative judiciary are credibly challenged.
As Justice Scalia stated for the majority in Republican Party v. White, lack of judicial predisposition is neither desirable, nor possible. Taking that statement as true, it seems evident that a judge's predisposition is inextricably bound to the judge's racial, gender, and ethnic experience. Likewise, a judge's representative capacity is contingent on the ability to hear, understand, and articulate diverse views. Thus, without substantive ideological and narrative judicial diversity, any discussion touting the relative advantages to accountability or independence of elective or appointive judicial selection methods is largely irrelevant. As Deborah Goldberg, Director of the Brennan Center's Democracy Program, notes "[w]hether judicial diversity will be helped or harmed by a movement to non-elective systems is ... unclear." (2) It is clear, however, that efforts to obtain a diverse bench, whether in a system of merit selection or popular election, foster the complementary interests of judicial independence and judicial accountability.
II. THE FORCED DICHOTOMY OF INDEPENDENCE AND ACCOUNTABILITY
In the legal literature, judicial independence and judicial accountability are at war. (3) According to this collective history, a fundamental conundrum in our constitutional republic is the method of creating a judicial branch that is both sufficiently insulated from republican concerns--to remain faithful to the Constitution--and democratically accountable. This section will describe this groundwork in anticipation of a discussion of judicial diversity.
A. Judicial Independence
Judicial independence is a foundational principle of our Constitution. The two structural arguments for its importance are straightforward. First, in a constitutional republic the judiciary must be independent from the other branches of government. The Constitution serves as the sovereign will of the people: the Constitution is the definition of government. (4) Thus, as often noted, the executive and legislative branches are precluded from acting in the absence of an express or implied constitutional grant of authority. In this system of government, the judiciary is a constitutional priesthood loyal to the sovereign will--the Constitution--in the face of majoritarian excess, executive encroachment, and legislative self-aggrandizement. (5) Although, seemingly, it is counterintuitive to ordain the sovereign will at the expense of the popular will, this is central to a constitutional republic: constitutional guarantees are empty if subordinated to extraconstitutional passions. …