One of the most interesting issues in American politics is the role of the courts. I remember discussing similar topics before on this Forum and I enjoyed those discussions. This is an attempt to continue them.

At the national level, judges are appointed by the president and confirmed by the Senate (they need 60 of the 100 votes in the Senate to be confirmed). They serve lifetime terms; the Constitution allows Congress to impeach them but this is only slightly less rare than the impeachment of presidents.

Since the early days of the Republic (1803 or so), the federal judiciary reserved to itself the ability to declare laws passed by Congress as being unconstitutional. With this came the idea that the final arbiter of what the Constitution means is the Supreme Court. As the saying goes, "The Constitution means whatever five people on the Supreme Court says it does."

This is not a power explicitly mentioned in the Constitution, but Article III which lays out the federal judiciary is quite short, especially compared to those for the Congress and the president. In many countries, courts do not have this power.

Each state also has its own set of courts. Surprisingly, almost none have lifetime appointments for judges. The majority of the states, in fact, force judges to appear the voters: either as part of a regular confirmation process, or as an actual election.

It is generally accepted within the state systems that the courts there are able to interpret state law against the state and federal constitutions, and to strike down laws that do not comport with them (this power is called judicial review).

Here's where this post gets interesting, I hope. The idea behind the federal system of lifetime appointments is to ensure that the judiciary is independent of political concerns. According to this theory, judges should follow the law, regardless of how popular it is at the moment. If a judge knows he will be up for election in a month, it might make him reconsider an unpopular decision and thus lead to bad execution of the law.

As the states have discovered, though, judges are people with political ideas themselves and the law is not always clear. Not only that, but the power of judicial review is tremendous. In a government full of checks and balances, the only effective check to overturn a Supreme Court ruling is to amend the Constitution -- something only slightly more likely to occur than a judicial impeachment.

Not only that, but the federal judiciary is unelected. In a democracy[1], giving such tremendous power to a group of people who never stand before the voters seems contrary to the basic principle of representative government. The courts are inherently political, they routinely make political decisions, and there's no way to stop it. Should they be so insulated from the public?

On the other hand, allowing judges to be elected forces them to campaign. Campaigning as a judicial candidate is nearly impossible. Judicial ethics rules say you shouldn't offer your opinion on any subject you're likely to hear as a judge. But what else is a judge supposed to run on? Voters can't be expected to read a judge's opinions and base their vote on his mastery of the law (to say nothing of people who are running for judge for the first time). If a political candidate comes to you, the first thing you ask: "What are you going to do for me?" Asking such a question to a judicial candidate is just contrary to our notion of judges.

Also, campaigning means judges have to raise money. There are two groups likely to want to donate to a judge: lawyers who frequently have cases before that judge and people who have pending litigation the judge is likely to hear. If you're involved in a lawsuit, do you want the judge to be somebody who has accepted money from the other side? Public financing of judicial campaigns has been tried in a few states, but it has its own problems.

If judges are having to worry about popularity, it also robs them of another point of pride the federal judges often claim: the ability to act as a check on the will of majorities against minorities. Avoiding the "tyranny of the majority" is the whole reason we have a Bill of Rights -- a list of things the majority cannot do. Unelected judges who serve for life can safely rule against the majority while any politician who routinely makes unpopular laws will eventually be voted out.

What this all really comes down to is a matter of independence vs. accountability. The more independent of partisan bias judges tend to be, the less accountable to the public will they are. My open question is this: how should we get our judges? How do we balance independence and accountability? Which value is more important?

Stephen

[1] Blah blah blah the United States is a republic not a democracy, you're very smart, now shut up.