Judicial Accountability in the United States

The view that judges must be accountable to the public they serve. Judicial accountability becomes a critical issue in the choice of judicial selection methods. If accountability is assigned high priority, selection systems are chosen that allow the public to regularly evaluate judicial performance. On the other hand, if judicial independence is given priority, selection systems will be chosen that attempt to insulate judges from popular control or political influence. The framers of the U.S. Constitution sought to foster judicial independence. While the executive and legislative branches are involved in selection, federal judges are given independence by provisions of Article III, which grants life tenure and prohibits reduction of compensation. Most states used executive or legislative appointment selection methods until the 1830s. The election of 1828, however, brought Andrew Jackson to the presidency. With him came a desire for increasing popular control over all public officials. Independence, especially of judges, became less desirable. As a consequence, many states turned to partisan elections as the principal method of judicial selection. When parties themselves began to interfere with the exercise of popular control, a number of states turned to nonpartisan elections. The priority of accountability remained, however. One further reform came with “merit” selection, a method now in place in twenty states (at least for appellate courts if not all courts). However, retention elections are a principal component of the plan. Thus, even states wishing to depoliticize judicial selection with the “merit” approach embrace the priority of accountability.

See Also

Interim Appointment (Judicial Personnel issue) Judicial Independence (Judicial Personnel issue) Missouri Plan (Judicial Personnel issue) Nonpartisan Election (Judicial Personnel issue) Partisan Election (Judicial Personnel issue).

Analysis and Relevance

Judicial accountability can be achieved in more than one way. The other governmental branches, for example, may make courts indirectly accountable to the public. The appointive selection processes create some of these indirect controls. Similarly, if courts consistently make policy decisions that are incompatible with public sentiment, such “court-curbing” initiatives as scaling back on jurisdiction could occur. The technique most often advanced to provide direct control by the public is the election process. This has been the approach of preference among an overwhelming majority of the states; the public plays the centrol role in selecting and/or retaining judges. Elections, however, are not quite as effective at creating accountability as intended. This is true because judicial elections are typically not competitive (often not contested), judicial terms are long and elections infrequent, the public seldom has much interest injudicial elections, and voter turnout is generally very low. As a result, accountability in elective states is more often produced through the politics of the interim appointment process rather than by direct public participation in selection.

Notes and References

1. Definition of Judicial Accountability from the American Law Dictionary, 1991, California