Judicial Selection Reconsidered: A Plea for Radical Moderation

I. RETHINKING JUDICIAL INDEPENDENCE FOR COURTS INFLUENCED BY LAW AND POLITICS II. THE IMPLICATIONS OF RETHINKING JUDICIAL INDEPENDENCE FOR JUDICIAL SELECTION III. ISOLATING CORE INDEPENDENCE PROBLEMS AND MARGINALIZING DISTRACTIONS A. The Re-Selection Problem B. The Campaign Finance Problem C. The Precommitment Problem IV. LOOKING FORWARD A. Re-Selection Reform B. Campaign Finance Reform C. Precommitment Reform CONCLUSION The judicial selection debate features a formidable list of seemingly unrelated issues that obscures the pivotal disagreement at the core of the dispute. (1) Proponents of contested elections ultimately proceed from a simple premise: Judges, like legislators, are policymakers who, in a representative democracy, should be accountable to the people they serve. (2) Within this camp, some make the point with irritation: Judges should exercise restraint and avoid policymaking but often do not. (3) Others are untroubled by judicial policymaking, which they regard as inevitable. (4) Either way, the argument against an appointed judiciary and for an elected one follows naturally and can be expressed as a syllogism: Unelected judges are unaccountable policymakers; unaccountable policymakers flout the rule of law and the will of the people; therefore, unelected judges flout the rule of law and the will of the people. Conclusion: Judges should be elected. Proponents of appointed judiciaries proceed similarly, but from an opposing premise: Judges uphold the rule of law and, therefore, they need to be independent of those--including voters--who would interfere with their impartial judgment. (5) Judges are thus fundamentally different from policymakers in the "political branches" of government: They do not make rules of law but impartially apply rules made by the other branches. From there, the argument against an elected judiciary and for an appointed one is reducible to a competing syllogism: Judges must be independent of the electorate to uphold the rule of law and fulfill their constitutional role; elected judges are not independent of the electorate; therefore, elected judges do not uphold the rule of law and fulfill their constitutional role. Conclusion: Judges should be appointed. In this Essay, I argue that it is no longer credible to contend that judges simply declare what the law is without regard to what they think the law should be. In difficult cases, judicial decisionmaking requires discretion that inevitably brings legal and extralegal considerations to bear. Conceding that judges are "policymakers" in some sense of the term, however, does not mean that judges are undeserving of independence denied public officials in the political branches. What judges do is different from what other public officials do in ways that justify a measure of autonomy for a quasi-legal, quasi-political judiciary. The net effect of these differences is to make the judge a unique kind of occasional policymaker, who does not represent a constituency in the same way as elected officials in the other branches. Whether those differences warrant independence from the electorate in periodic elections is context-dependent, which helps explain why debate over the optimal system of judicial selection is inevitable, perpetual, and, in the minds of some, hopeless. Thinking about judicial selection with reference to the justifications for judicial independence developed here enables us to get past unproductive, all-or-nothing arguments about whether judges should be elected or appointed and instead isolate three core threats to independence so as to focus the debate: judicial re-selection, real or perceived dependence on campaign supporters, and candidate precommitments. I conclude with some thoughts on how to remedy these problems incrementally, without resorting to all-or-nothing arguments. RETHINKING JUDICIAL INDEPENDENCE FOR COURTS INFLUENCED BY LAW AND POLITICS I have argued elsewhere that the legal establishment has painted itself into a corner by defending the need for judicial independence with almost exclusive reference to an implausible claim--reminiscent of rigid nineteenth-century formalism--that independent judges do not make rules of law but merely follow them. …