Scott Gerber's A Distinct Judicial Power brilliantly traces the development of the Article III model of an independent judiciary from its colonial origins to the Philadelphia Convention. (1) Although Article III defines the federal courts, few states today fully embrace that model. (2) Article III guarantees federal judges tenure during good behavior, but only Massachusetts and New Hampshire follow the federal example. (3) Article III establishes a system of presidential appointment and senatorial confirmation, but only California, Maine, New Hampshire, and New Jersey use a system of executive appointment with confirmation by another body, and even those states' processes vary somewhat from the Article III model. (4) For example, in California the appointed judges run in periodic retention elections, (5) while in New Jersey they serve a term of 7 years after which they must be reappointed by the governor and confirmed by the senate to serve to the retirement age of 70. (6) Finally, Article III protects federal judges against reduction in their salaries, but some states permit such reductions as long as they are part of an across-the-board reduction of the salaries of state officials or prohibit raising the salaries of sitting judges as well as lowering them. (7)
Differences in the status of Article III judges and their state counterparts are not new. States have charted their own paths, looking more to the practices in sister states than to the federal system. (8) During the eighteenth century, several states introduced removal by address, under which judges could be removed from office without trial by vote of the state legislature. (9) During the nineteenth century, most states instituted partisan election of judges and reduced their tenure. (10) And during the twentieth century, some states introduced the recall of judges, some instituted nonpartisan election of judges, and others adopted "merit selection" of judges--a system under which the governor appoints from a list of candidates selected by a purportedly neutral judicial selection commission. (11)
This Essay traces the states' efforts to define the "distinct judicial power" in the decades after independence and the adoption of the Federal Constitution. The contours of that power were contested for much of the antebellum era as debates raged over the role of the judiciary in a republican polity. Two issues dominated that debate: from whom should judges be independent and what should be the scope of their responsibilities? Only after consensus was reached on these issues could discussion begin about what influences impinged on the performance of that function.
I. INDEPENDENT OF WHOM?
Some early state constitutions contained stirring rhetoric on judicial independence. The Massachusetts Declaration of Rights of 1780, for instance, proclaimed "the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit," (12) 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...." (13) Institutional arrangements under eighteenth-century state constitutions, however, emphasized judicial accountability to state legislatures. (14) As John Phillip Reid has noted: "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." (15) Even those Massachusetts "judges as free, impartial, and independent as the lot of humanity will admit" (16) could be removed upon the address of both houses of the state legislature. (17) 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. …