It's Not Who Hires You but Who Can Fire You: The Case against Retention Elections
Aulet, Kenneth J., Columbia Journal of Law and Social Problems
Since Republican Party of Minnesota v. White was decided by the Supreme Court, "merit selection" plans have been the favored method for judicial election reform over non-partisan elections. This Note will offer a survey of the reform methods and examine their flaws - specifically, the assumption that retention elections are less of a threat to judicial impartiality than elections to fill vacancies. This Note proposes that states that wish to retain some public control over the judiciary should abolish retention elections, while preserving elections to fill judicial vacancies. The theory that the method of judicial selection is more important than judicial retention methods in maintaining an impartial and qualified judiciary is not supported by evidence and should be discarded.
Fierce debate has existed over the merits of electing judges since Georgia first started judicial elections in 1812,1 and the controversy was most recently rekindled by Justice Sandra Day O'Connor's speeches on the issue following her retirement from the United States Supreme Court.2 Reformers have often advocated moving fully to the federal model, in which judges are appointed for life by the executive, but have found that in many states it is not politically tenable to abolish judicial elections entirely. Therefore, the thrust of many reform efforts has been aimed at implementing systems that retain judicial elections in a limited role, such as non-partisan elections and merit selection plans. Merit selection plans generally involve the screening of potential judges by a commission and the appointment by the governor of one of the approved judges. These judges will then periodically face retention elections - where voters either allow them to retain their seats or remove them, but do not have the option of electing someone else in their stead.
This Note argues that the method by which judges are retained rather than elected has the greatest effect on judicial independence and impartiality. There is not a significant difference between the measurable qualifications of judges chosen through merit selection and judges elected in partisan or nonpartisan elections, a significant rationale for the system,3 but the particulars of the method of judicial retention used do have a significant effect on the actions of sitting judges.4
This Note will discuss the reform efforts and debate surrounding the election of judges. Part II introduces Republican Party of Minnesota v. White and provides a history of judicial elections. Parts III focuses on the arguments made for three common methods of judicial elections in the United States, using the various opinions in Republican Party of Minnesota v. White that advocate for each: Justice Antonin Scalia's defense of partisan judicial elections; Justice John Paul Stevens's and Justice Ruth Bader Ginsburg's arguments in favor of non-partisan judicial elections; and Justice O'Connor's arguments against judicial elections in general and her suggestion that states implement merit selection plans. Part IV demonstrates that these reform efforts have not been successful because they all require judges to be subject to periodic retention elections. As this Note will argue, retention elections are a greater threat to judicial independence than any other form of judicial elections. Finally, Part V recommends that states that demand some form of judicial elections abolish retention elections and instead institute selection elections5 in order to create a more impartial and independent judiciary.
II. THE HISTORY OF JUDICIAL ELECTIONS AND AN INTRODUCTION TO REPUBLICAN PARTY OF MINNESOTA V. WHITE
The issue of judicial selection and retention has been a topic of debate since the American colonial era. The Declaration of Independence declared judicial independence as a founding principle of the nation and justified independence, in part, by accusing the King of making "Judges dependent on his Will alone, for the Tenure of their Offices. …