A Gorilla at the Dinner Table:1 Partisan Judicial Elections in the United States
Souders, Ryan L., The Review of Litigation
In this Note, I will discuss the ever-growing concerns across the country regarding judicial elections and I will propose solutions. I will show that although elections solved some of the abuses that existed during the nineteenth century under the appointive process, the election system has outlived its usefulness, and governments should initiate reform.
I will begin this Note by defining judicial independence and supporting its importance as a legal ideal and an analytical construct. To prove its importance, I will present various critiques of judicial independence, generally, and of formal independence, specifically. I will next present recent scholarship that demonstrates a link between the institutional arrangement of courts and the decisions that judges make. I will next propose the normative goals that every judiciary shall aspire to achieve.
With the normative goals that I propose in mind, I will then look at the past and present of various judicial selection methods and will illustrate the ways that partisan election systems fail to achieve these normative goals. I will show that a partisan election structure cannot possibly achieve these goals.
I will conclude the Note by proposing a wholesale change to the judicial election process-moving to merit selection. I will demonstrate that merit selection combines desired traits from both the election and appointment processes and minimizes the weaknesses of each. Merit selection combines the democratic ideals of the election process with the decisional independence of the appointment process; it can more effectively select highly qualified candidates who are better insulated from the political perils of the election system. I will conclude by arguing for a quick and decisive change to the current election system. Through merit selection, I will show that states can achieve the normative goal of providing a neutral triadic dispute resolution system for the people.
II. JUDICIAL INDEPENDENCE
A. Defining Judicial Independence
Judicial independence has been called "an elusive, multi-layer concept that is difficult to define."2 Almost universally, scholars and judges recognize judicial independence as a legal ideal that correlates closely with judicial objectivity.3 Former Chief Justice Rehnquist once noted that "[t]he independence of [the judiciary] ... is every bit as important in securing the recognition of the rights granted by the Constitution as is the declaration of those rights themselves."4
As much as judicial independence is regarded as a virtue by scholars, the public has placed great emphasis on the political accountability of legislators, executives, and judges. Whereas legislators and executives should serve the interests of the electorate, judges are charged with fairly and impartially administering the laws of the state and the United States. In the judicial context, independence conflicts directly with accountability, as it is commonly defined.5 As Charles Gardner Geyh explains, "An absolutely independent judge is-by definition-dependent on no one."6 So, as Geyh observes, the important inquiry is, "Where should independence end and accountability begin?" The public does not want the judiciary to return to its elitist, homogenous roots, but can an accountable judiciary act and appear impartial?8 To answer these questions, this Note will first define and examine the importance of judicial independence.
Many scholars define judicial independence differently but most definitions include three interrelated concepts.9 These concepts include: (1) behavioral or decisional independence-sometimes referred to simply as impartiality at the case level; (2) formal or institutional independence, which describes the judicial system's institutional structure, including selection and retention methods, tenure, and salary; and (3) insularity from other political branches-also referred to as separation of powers. …