The Relative Concept of Judicial Independence
Hurwitz, Mark S., Texas Law Review
The Relative Concept of Judicial Independence THE PEOPLE'S COURTS: PURSUING JUDICIAL INDEPENDENCE IN AMERICA. By Jed Handelsman Shugerman. Cambridge, Massachusetts: Harvard University Press, 2012. 400 pages. $35.00.
Should judicial offices be subject to electoral processes? That question is endlessly debated, usually from a normative perspective. Groups like the American Judicature Society (AJS) and the American Bar Association (ABA) spend much of their resources vehemently contending that judicial elections are bad for justice and should be replaced.1 Others argue instead that judicial elections satisfy the American tradition of accountability to the public, and thus as important policy makers judges should be held electorally accountable.2
In The People's Courts: Pursuing Judicial Independence in America,3 Jed Handelsman Shugerman takes a more nuanced approach to the topic of judicial elections. In this meticulously researched book, Handelsman discusses the history of judicial elections in the United States, while placing elections squarely within the debate concerning judicial independence and accountability. That is, while he discusses the benefits and burdens of judicial elections and other judicial selection systems, Handelsman counters that the answer is not as simple as claiming the goals of judicial selection are the mutually exclusive concepts of independence or accountability. As he states in his conclusion:
The adoption of partisan judicial elections in the nineteenth century and then their partial rejection/reformation in the twentieth century both were the result of a widespread commitment to the idea of judicial independence. This seeming paradox is possible because judicial independence is often a relative concept, and the understandings of judicial independence have changed over time. Relatedly, the perceptions of "good" and "bad" politics have also changed over time.4
With this theme in mind, Shugerman illustrates the events that led to changes (and sometimes stability) in judicial selection over time, with a focus on the history and longevity of elections. As he does so, Shugerman shows the specifics of particular cases while also putting events and transitions in historical context. Indeed, that is how I will proceed in this Review. I first will summarize Shugerman's arguments in historical and chronological order, as he advances in his book. Then, I will address the arguments made by Shugerman.
I. Stages of Judicial Selection and Independence over Time
Shugerman contends that the transformation of judicial selection over time in the United States, particularly with respect to judicial elections, entails the concepts of separation of powers and judicial independence. How do elections relate to judicial independence? Shugerman discusses that in some detail when he demonstrates how elections came about in the United States in the mid-nineteenth century, and how these institutions have reacted to different contextual influences over time. To introduce his thesis, Shugerman states that "this book argues that the story of judicial elections is also the story of the ongoing American pursuit of judicial independence-and the changing understandings of what judicial independence means."5
More particularly, in his view, contextual aspects of political life in America influenced judicial selection. "Each generation feared concrete evils: imperious kings, incompetent legislators, corrupt political parties, corrupting special interests, demagoguery, and the masses."6 Confronting those evils led to attempted changes (some successful, some not) to judicial selection in the states. Those changes in selection systems as they relate to issues of judicial independence extend to Shugerman's five stages of judicial selection over the course of American history: (1) "premodern unseparated judiciary," (2) "judicial aristocracy," (3) "judicial democracy," (4) "judicial meritocracy," and (5) "judicial plutocracy. …