An independent, non-partisan, and accountable judiciary

The most important characteristic of a judge is that he be impartial, but the question of how to select an impartial judge is a difficult one, particularly in a democracy, where people may disagree about who is and is not impartial. The best that we can hope for, it would seem, is to have judges that an overwhelming majority of the populace agrees are impartial. We believe that this is not an impossible dream.

Our federal judges do not project impartiality at present. In the federal judiciary, judges are appointed by the president with confirmation by the Senate. These judges are appointed for life in an effort to protect their independence, but there is a very strong correlation between the politics of the appointing president and the decisions of the appointed judge. This leads many people to doubt that federal judges are unbiased, which is extremely concerning because judges wield enormous power in the United States.

If the Supreme Court makes a decision upon constitutional grounds there is nothing that can be done to overturn that decision short of a constitutional amendment (which is nearly impossible to pass on any contentious issue) or the replacement of the members of the Supreme Court by new members willing to overturn the decision. Like other federal judges, however, justices of the Supreme Court are appointed for life. This is more than an idle phrase. In practice they often do serve for the entire remainder of their life, and those that retire generally wait for a similarly minded president to appoint their successor. Consequently, if the citizens feel that the Supreme Court has made an error in judgment there is literally nothing anyone can do but wait for a justice to die and hope that the right politician is in office when it happens. In light of this, there is little wonder in the hysteria that often surrounds the selection of a new Supreme Court Justice.

The procedure established in the Constitution for the selection of the federal judiciary is based on that used at the time for the selection of state judges. Subsequently, many states changed their methods of selecting judges in an effort to give more voice to the populous. Initially, there was a movement among the states towards elected judges. Electing judges certainly allows for more popular input but seems to doom any hope of impartiality. In an effort to combat naked partisanship, non-partisan judicial elections were adopted, but these still require the candidates to procure funding in order to campaign, which comes with a significant risk that judges are compromised by their donors. In more recent years states have shifted to theoretically non-partisan merit-based selection of judges by a panel of experts combined with public retention elections. Retention elections have their own concerns, in particular, that when a candidate for retention is opposed by some group it is necessary for the candidate to raise money to defend himself. This again raises the concern that judges might favor groups that donate money to their campaigns.

Of these options we feel that the retention election is the best and that concerns about campaign financing are best addressed through public financing of judicial retention elections. This would allow concerned parties to voice their objections, while also allowing the judge to defend himself without needing to raise money and potentially compromise his principles.

In order to better approximate the ideal of a judge being a person of universally agreed fairness and impartiality, we feel that it should be possible for sizable minorities to dismiss a judge. For this reason we propose that a judge be dismissed if less than 60% of ballots either include a vote for his retention or omit any vote on the subject. Counting abstentions in the judge's favor should help to compensate for the tendency of voters not to vote in retention elections. It essentially amounts to assuming that a judge that voters have no opinion about is doing a good job. In state judicial elections it is not uncommon for one third of voters to omit any vote on retention elections, so for lower-profile federal retention elections, the 60% threshold proposed here may not differ much from the more common threshold of 50% votes for retain. It does ensure that a judge that more than 40% of the population disapproves of will be dismissed, however.

In order to preserve some of the inertia built into the judicial system we propose six-year judicial terms, so while judges would not be guaranteed a lifetime appointment, they would only infrequently be called to defend their record.

All of this leaves open the question of how federal judges will be chosen in the first place. Judges could be chosen, as in many states, by committees of experts, but we feel that a better approach is sortition, that is, choosing them randomly, from a pool of candidates. We propose that judges for each U.S. district court be chosen from a non-partisan pool of candidates identified by the corresponding state and that judges of the higher courts be chosen from judges of the next lower court that have won at least one retention election in their current post. Thus, a vacancy in the Supreme Court would be filled by a randomly selected judge from the United States Court of Appeals that has won at least one retention election in that post. This completely eliminates concerns about biases in the selection of judges for the upper levels of the federal court system, and voters have time to root out biases in the pool of candidates for district judges before they reach the upper levels of the judiciary.

The most common objection to such a system is that it would be extremely disruptive since all current Supreme Court Justices and many current justices of the lower courts might lose their first retention election. Given six-year judicial terms, three Supreme Court Justices would face a retention vote every two years. In six years we might possibly have an entirely new Supreme Court, but we do not believe that this rate of replacement would continue. Justices subject to supermajority retention elections would soon learn that engaging in party politics was no longer in their interest and would instead focus on hewing closely to the law and preexisting precedent to preserve their reputations for impartiality.

This would result in fewer judicial decisions, both good and bad, that run counter to all existing law and precedent, but we do not believe that the making of such decisions is the proper function of the judiciary. A judge could nonetheless exercise his superior wisdom to blatantly overrule the democratic process, but doing so would likely cost him his position.

A secondary objection is that random selection makes it very unlikely that the justices of the Supreme Court will be those that most merit the position. While this is true, our current selection process, which prioritizes judges with clear political leanings, does not obviously select for merit either and certainly selects against impartiality. In general, we feel that the pool of candidates nominated to the federal judiciary by the states should be of sufficient quality that they could serve in any federal judicial position. If the people find them lacking, they will be free to dismiss them.

The form of government established by the constitution of the United States has been so durable in part because it mandated a separation of powers, but the independence of the judiciary has always been rather incomplete. We believe that adopting the proposal here would better establish the federal judiciary as a separate and co-equal branch of government, while making it more accountable to the people. Justices would be more independent of the political parties and therefore presumably less likely to become embroiled in their battles and better able to rein them in when appropriate. This would also remove judicial politics as a factor in presidential elections, where we believe it has no place.