Independent or Accountable Courts?
By Sean Evans, Chair and Professor of Political Science
Jul 23, 2014 -
In an otherwise dull set of statewide races, one of the more interesting races is the retention elections of Chief Justice Gary Wade, Justice Cornelia Clark, and Justice Sharon Lee. Lt. Governor Ron Ramsey and many other Republicans believe that the Supreme Court, like the governor and state legislature, should reflect Tennessee’s Republican nature. Since the three justices are Democrats, Ramsey wants to replace them with more conservative and Republican justices. The supporters of the justices decry this attempt as an attack on judicial independence and an affront to constitutional democracy.
Is Ramsey’s push a threat to our democracy? At the heart of this debate are two competing notions of democracy: progressivism which prefers rule by experts and Jacksonian Democracy which believes in rule by the people. The adherents of progressivism believe that merit should determine judicial decision making and we should insulate judges to from political pressure so they can make the right decision. On the other side, supporters of Jacksonian Democracy argue that democracy means the people should make decisions and thus voters should be able to select all officials, including judges, to insure they reflect the will of the people.
This blog will discuss the underlying philosophies of both positions, the merits of the judicial independence and judicial accountability arguments, and then conclude arguing that it is OK to vote not to retain the justices but it may not be wise.
Progressivism and the Courts
Progressivism, as an idea, became popular at the turn of the 20th Century. As government became increasingly involved in more complex activities such as regulating business, protecting the environment, promoting public health, etc., many argued that we needed to reform government to meet the challenges of the 20th Century. Thus, progressives wanted to replace patronage, where government employees were selected based on their political connections, with a merit system where government employees were selected based on their qualifications for a specific position. This idea took root with the passage of civil service reform after a disgruntled office seeker assassinated President James Garfield because he did not get the patronage position that he wanted. Slowly, presidents of both parties extended civil service protection to most government jobs so that the president can now only appoint about 5000 people to political office.
The basic idea of progressivism is that we should remove politics from government. With the development of the sciences, we can use science to identify the causes of problems, develop appropriate solutions, and use unbiased criteria to determine the correct solution. In short, progressivism make government more about administration than politics. In fact, it looks down on politics because the intrusion of politics would lead to less efficient and effective policies.
In the judicial realm, progressivism’s first success occurred with the adoption of the Missouri Plan in 1940 after several judicial elections were "influenced" by Pendergast’s political machine of Kansas City. The Missouri Plan has a non-partisan judicial commission accept applications and interview candidates for appellate judge positions. The commission will choose a panel to recommend to the governor who will then choose one of the nominees. 13 states currently use the Missouri plan to choose their state supreme court and another 10 use a hybrid system that involves appointed by a commission and confirmation by a democratic body.
Tennessee adopted a modified Missouri plan in 1971 for appellate courts. This plan called for a nominating commission appointed by the leaders of the two chambers of the General Assembly to screen and nominate judges for governors. The governor can choose a nominee from the panel or request a new panel. The governor must choose one of the nominees from the second panel if it gets that far. However, it was not until 1994 that the Tennessee Plan applied to the Tennessee Supreme Court.
Traditionally, judicial retention elections are sleepy affairs. Judges usually don’t campaign and don’t raise money and coast to retention. In fact in Tennessee’s last retention election in 2006, the three justices up for retention received 75% or more of the vote. In fact prior to 2010, only 4 justices have lost retention elections in the nation at large with only a few more serious attempts to oust judges at retention elections (Matthew Streb, in Running for Judge). Of those four, one was Tennessee’s Chief Justice Penny White who lost her retention vote in 1996 for being perceived as soft on crime.
However, this trend toward sleepy retention elections is changing (see May’s Judicial Retention Elections After 2010). In 2010, Iowa voters decided not to retain three Iowa Supreme Court justices over their opinion legalizing same sex marriage. In six other states, money was spent to defeat justices but the efforts failed. Then in 2012, groups campaigned to oust justices in 4 more states in retention elections. If we included the states that elect Supreme Court races, the number of races to defeat sitting justices would climb even higher.
This trend worries many legal advocates because they fear the politicization of courts. The fear is that money going into retention elections makes justices responsive to political forces rather than the law and threatens the independence of the courts. If judges need campaign funds to run for office, they must seek the contributions from groups that have business before the court. Thus, the fundraising imperative may make judges rule in certain ways to gain funding and votes which risks rulings favoring moneyed interests over the dictates of the law.
Moreover, the Tennessee Bar Association claims that a nonpartisan system has other benefits. First, more highly qualified candidates apply to be judges because of their commitment to the law rather than just having judges whose main qualification is their ability to raise a lot of money. Second, state judicial elections around the country are becoming more negative which undermines the legitimacy of the courts by convincing people that the courts can be bought. Third, the business community needs stability to make long term plans and constantly changing judges undermines that stability.
Jacksonian Democracy and the Courts
Jacksonian Democracy arose out of Jackson’s populist instincts as he tried to return government to the people. Andrew Jackson blamed his defeat in the 1824 presidential election on a “corrupt bargain” between John Quincy Adams and Henry Clay which led Clay, then Speaker of the House, to support Adams for president in the House vote because no candidate got an electoral college majority, in exchange for being appointed Secretary of State. Jackson saw this as the work of a corrupt elite that had been running the country to the detriment of the common man and remedied this on his election in 1828 by firing all government employees and replacing them with Jackson loyalist and by destroying the Bank of the United States.
Of course behind the idea of Jacksonian Democracy is democratic accountability as government should be responsive to the people. But the only way for this to happen is for the voters to be engaged by the candidates. And the best way to engage the voters is a vigorous debate on the issues so that voters can identify the candidate closer to their position. Of course, any attempt to lessen the power of voters and empower elites means that our democracy is less representative and thus less democratic.
Unsurprisingly, Jacksonian Democracy opposes merit systems for selecting judges. First, they argue that merit systems do not eliminate politics from the selection process but simply moves them behind closed doors. Most of these merit systems give a privileged place to the bar association which gives them disproportionate influence in the selection process. This is fine as long as the bar reflects the will of the people, but all too often the bar insures that the judges reflect its ideological preferences. Since the bar association is more liberal than the population as a whole, their supporters on judicial commissions tend to support more liberal judicial nominees. The politics of commissions can be most clearly seen when the Tennessee Judicial Selection Commission tried to force Governor Bredeson to pick Democratic super lawyer Houston Gordon as a supreme court justice. We continue to see political machinations occurring in the Tennessee Judicial Selection Commission today.
Second, political scientist Jim Gibson in his book Electing Judges finds that voters realize judicial decisions are exercises in policy making and want to know the positions of judges. Third, Gibson finds that judicial campaigns boost the legitimacy or courts as negative advertises does not affect the opinions toward the court, though campaign contributions do. Fourth, Bonneau and Hall’s In Defense of Judicial Elections finds that retention elections have a significant drop off in voting while contested judicial elections increase voter participation making contested judicial elections more democratic. Fifth, Bonneau and Hall find that partisan elections produce just as many quality judges as merit systems.
Finally, politicians of both parties support the consideration on ideological criteria in confirming federal judges. One just has to do a quick google search and find examples of Senators of both parties claiming that judicial philosophy is a legitimate criteria in determining whether to confirm a judge. Granted that the Senators change their political tunes in the professionalism v judicial philosophy debate depending on if a president of their party is in the White House, but it seems very hypocritical to allow Senators to consider judicial philosophy and past decisions of judges and not allow voters to do the same in retention elections.
Independent or Accountable Courts?
So should the courts be independent or accountable? In reality, this argument sets up a false dichotomy. Proponents of judicial independence support accountability and supporters of judicial accountability support judicial independence. Proponents of judicial independence believe in accountability but believe judicial professionalism should be the criteria for retaining judges while judicial accountability supporters prefer more explicit political criteria. Even supporters of judicial accountability support judicial independence as they believe that there are things that the government cannot do. Their main concern is that a too independent judiciary will substitute their political views for those of elected representatives which is inherently undemocratic.
As you prepare to vote in this election, remember that voting to not retain the justices for political purposes is a legitimate tactic. However, it may not be wise. Of all our institutions in government, the courts have the greatest support as it is seen, widely, as non-political. However, as partisanship has increased over the last 15 years, support for the Court has fallen also. In fact, the court is the only institution that a majority of Democrats, Republicans, and Independents trust. If our courts are increasingly seen as just as political as the other two branches, then trust in government will continue to fall and a precipitous drop in legitimacy can have profound implications for the future of our democratic experiment.