Authoritarian rulers need to implement laws as much as non-authoritarians do, and that means judges have more independence than you might think.
In recent times, social science scholarship on the selection and retention of state judges, especially high court judges, has exploded. The American states have become interesting again. And along with the scholarship has come intense policy debates about the structure and functions of these state courts of last resort.
A central—no, the central—issue capturing the attention of so many analysts is how to balance judicial independence and judicial accountability. Only the thoughtless and the lazy prefer total independence or total accountability. The tough intellectual work goes to the questions of (a) striking the best balance between independence and accountability, and (b) which institutional structures would contribute to maintaining the desired balance.
Enter Professor Alan Tarr. Tarr’s book focuses squarely on the independence/accountability tradeoff, offering us both broad historical analysis as well as in-depth attention to the contemporary policy debates. The author uses as a literary device the voices of the opposing camps–—the Bashers and the Defenders—to explain the conflict between independence and accountability. In a highly accessible fashion, the book carries on the debate between these opposing views, and although some might find the constant references of these antagonists slightly tedious, the device is useful for discussing the pros and cons of independence and accountability, and for giving readers confidence that Tarr is even-handedly presenting arguments for and against judicial elections. The book has a broad focus, beginning its analysis with the founding of the American republic and the formation of the idea of judicial review and ending with a review of the recent experiments of some of the states with public funding of judicial campaigns
In the later chapters of the book, focusing on the contemporary policy debate, the views of the Bashers and the Defenders will be familiar to most students of state courts. Readers may even be able to fill in the identities of particular Bashers and particular Defenders, as the various arguments for and against are trotted out. Notably, the book is so well-organized that one could easily simply import the section headings and sub-headings into one’s lecture notes. Rarely have I seen such a thorough and systematic canvassing of the arguments for and against judicial independence and accountability.
What will be less familiar to many readers, however, is Tarr’s analysis of how the positions of these two camps have changed over time. Tarr documents in considerable detail the fact that those favoring judicial elections in the 19th century did so in major part out of the desire to enhance the independence of the state courts. “According to its nineteenth-century proponents, popular election would empower judges by giving them democratic legitimacy, liberate them from the control of political elites and special interests, and thereby embolden them to strike down legislative enactments that violated constitutional norms.” (P. 51)
In explicating this historical debate, Tarr makes clear that independence from the electorate (i.e., appointed systems) does not necessarily mean independence from party machines, political elites, or the other branches of government. The book should be a very interesting and cautionary reading for those who would do away with elections. For every important policy-making institution, some mechanisms of accountability will inevitably be present, even if the mechanisms are as mundane as ambition and ordinary careerism. The question then is always to whom should judges be accountable: the people, the legislature, the governor, legal elites, or some other political players. Tarr provides us an outstanding historical analysis of how and why the state courts reached their current position of strong emphasis of public accountability (as in the oft-stated fact that nearly 90 % of all American judges must face the electorate in one form or another). Rarely has historical analysis been so directly relevant to a contemporary policy debate.
This book has many impressive and valuable attributes. First, the conflicts over judicial elections are generally placed within larger theoretical contexts. After all, the book is about judicial elections in a liberal democracy, not in a theocracy, an aristocracy, or a dictatorship. The desire of citizens to hold policy makers accountable for their actions is quite natural within a liberal democracy; the strong commitment of the American people to this form of government is one reason why judicial elections are so unlikely to be eliminated in the U.S. One cannot understand the American preference for elections without placing that preference within the context of the deeply democratic political culture of the U.S. As Tarr shows us, American exceptionalism when it comes to judicial elections is not so exceptional when viewed from the broader perspective of the political values of the American people.
Second, Tarr predicates the entire accountability/independence debate on the context of the strong policy-making powers of the American courts. If judges were mechanical jurisprudes, using nothing more than logic to deduce decisions, the debate about selecting judges would soon subside. But we are all legal realists now, including the American people, and because we recognize that judges exercise discretion, relying in their decision making upon their own ideologies, and other extra-legal factors (e.g., “empathy”), tilting selection mechanisms too far toward the independence end of the continuum seems both unwise and politically unacceptable. A portion of Tarr’s analysis therefore focuses on means by which judicial discretion can be reined in, as a possible solution to the selection/retention problem. Few, however, who pay careful attention to this portion of the book will be convinced that Tarr’s proposals for reducing judicial discretion offer much of a realistic palliative to the selection and retention problem.
Tarr makes other useful theoretical connections in the book (e.g., to popular constitutionalism). Placing judicial election in a larger context—understanding, for instance, that institutional legitimacy may be just about as important as commitment to the rule of law—does much to convince the reader that the tradeoffs between independence and accountability are not nearly as simple as many argue. Judicial independence may be locked in a zero-sum relationship with accountability, but many additional political values get implicated in the mix, making the choice of either more independence or more accountability decidedly more complicated. One of the outstanding attributes of Tarr’s book is that none of the myriad problems associated with independence or accountability are swept under the rug.
Another feature I deeply appreciate in this book is its attention to detail, and in particular its use of extensive documentary footnotes. Many conventional “wisdoms” and semi-truths cloud the debate over judicial elections (e.g., Rose Bird’s record of voting in death penalty cases in California). Tarr addresses a wide range of these issues and typically does so with detailed and specific references to extant literature (academic and otherwise). The bibliography and the footnotes alone are worth the price Stanford University Press is asking for the book.
Finally, Tarr seems fully aware of the non-judicial literatures on a wide variety of issues relevant to judicial elections (e.g., the literature on incumbency advantages; on the effects of negative campaign advertisements). It is refreshing to find a book that does not treat the judiciary as somehow unique, somehow immune to the myriad forces that shape all political institutions in the U.S. Judicial scholars can learn from other social science scholarship; Tarr’s book goes a considerable distance in helping us do so.
In the end, Professor Tarr does more than describe the contemporary policy debates; in addition, he casts his lot with partisan or non-partisan elections for open seats, but with elected judges serving a single nonrenewable term of office. The first part of his proposal is well-developed in the book and is compatible with Tarr’s emphasis on institutional, rather than individual, accountability. That is, Tarr makes the valuable distinction between holding individual judges accountable for their decisions (e.g., voting Iowa high court judges out because of their ruling on same-sex marriage) versus holding courts as institutions accountable for their policies. Tarr does not necessarily believe that there should be no individual judge accountability (and at several points he argues that a single instance of corruption, like a single objectionable policy decision, is sufficient cause for removing a judge). But when a seat on a court is open, there are practically no disadvantages to allowing the constituents of the institution – the people – to register their preferences for what kind of judge, committed to what kinds of judicial policies, should be on the bench in the future. Tarr quite persuasively argues that whatever demons are associated with judges “pandering” in order to advance individual self-interests have little if any role when opportunities to re-calibrate a court emerge through recurring open seats.
Tarr’s arguments for nonrenewable terms, however, comes as a bit of a surprise, in two respects. First, lame ducks are not widely known for their responsiveness to the preferences of their constituents, because, obviously, they will never again have to seek the approval of those constituents. Thus, Tarr’s preferred scheme winds up strongly emphasizing judicial independence at the expense of accountability. Tarr must recognize this, but he never seems to be able to fully acknowledge that a judge committed only to her own ideology can run amok just as well in a nonrenewable term institution as in a life-time appointment institution.
Perhaps more surprising, however, is the contrast between Professor Tarr’s scant consideration of the academic literature on term limitations and his detailed attention to the academic literatures on virtually every other topic considered in the book. I was surprised to see, for example, practically no discussion of the role of ambition and in particular of the need of judges to find work after leaving a term-limited court. Term limits redirect accountability away from public constituencies to those who can provide resources in the “after-life.” Many good arguments and much rigorous empirical evidence for and against term limits exists. It is a bit disappointing to see this literature largely ignored, especially in a book that is generally so attentive to social science research.
One does not have to embrace nonrenewable terms for judges to embrace Tarr’s book. This is an outstanding contribution to our literature; indeed, it may be the best single book I have read about judicial independence and accountability. And whatever one’s policy preferences—whether one is a Basher or a Defender—the book offers a treasure trove of facts that will help sharpen one’s arguments. Professor Alan Tarr has done us all a great service in writing this indispensable book. No scholar nor policy analyst who cares about selecting judges can afford to be ignorant of the story Tarr tells in Without Fear or Favor.