By: Jonathan Horner
It almost goes without saying that an independent judiciary is one of the basic ideals of any healthy democracy. Whilst it is important that any political group holding power does so with the support of the majority of the populace, it is desirable that the rights and freedoms of all can be protected, even if they are not within the majority. Therefore, there must exist a branch whose members can wield power independently of majority pressure or influence. In a democratic system, the judiciary is that branch. Judges should be able to make their decisions impartially, without regard to the parties involved in any particular dispute, as well as secure in their tenure, safe from removal when a particular decision is undesirable to a powerful group. In this way, the judicial branch provides a foil to the political impulses of the executive and legislature and ensures that the majority cannot overrule or demean the minority.
The make-up of the judiciary in the United States at both state and federal level challenges judicial independence. The election of judges in many states and the increasing politicisation of the federal confirmation process provide examples which deserve examination. The aim of this article is to examine these examples, as evidence of the political seemingly bleeding into the judicial, and analyse how this damages judicial independence. It will be concluded that reform to these arrangements and procedures would certainly strengthen the judiciary, at all levels in the United States, for the role it is meant to perform. Whilst it’s difficult to avoid the temptation to focus purely on the federal courts given their perceived greater importance and ability to grab greater attention, courts at the state level, and particularly the procedure through which their justices take up and maintain their roles, mustn’t be ignored. Since the early 1800s, elections for seats on the bench of state courts have been fairly commonplace, with 39 states across the country electing at least some of their judges. The states which rely on some variation of an appointment system without any role for elections are in the minority.
This reality would feel foreign to most Western jurists from other jurisdictions, with most focusing on technical skill and depth of training in appointing judges, whilst shielding appointed judges from the popular will. Prof Mitchell Lasser argues that by utilising a system of appointment through committee, as most jurisdictions have settled on, and focusing on qualifications and skill, you end up with candidates ‘who actually know what the hell they’re doing.’' However, defenders of the judicial election often cite the need for the judiciary to be responsive to public opinion and transparent. It’s clear that whilst this argument in favour of judicial elections sounds appealing, it doesn’t hold much weight at all.
Firstly, elections can only serve as a tool to force the incumbent judges to be more responsive to the public opinion if they are actually under threat when it comes to election day. Yet, many incumbent judges find themselves running unopposed. In LA County in 2014, 150 of the 151 incumbents found themselves in this position. Not only is it naïve to suggest that judges facing election will be more responsive to the public, but more to the point, it is questionable that this is even desirable. As mentioned previously, the judicial branch exists to check and be a foil to the political branches, with its members taking decisions as individuals and in an impartial manner. Former Supreme Court Justice Sandra Day O’Connor has been just one of the well-respected jurists to argue that this role is compromised as long as many state judges are elected. In states where partisan elections are held (7 states holding partisan elections at all trial court levels) the problem is clearer. As Illinois Supreme Court Justice Thomas Kilbride discovered, running for re-election unopposed does not prevent money from flowing into the incumbent’s campaign or an ad campaign criticising the incumbents record. Where races are contested, the attacks on an incumbent’s record on the bench may have greater influence on their decisions in the run-up to the election. A report by the Brennan Centre for Justice found that ‘the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases.’ Not only can the threat of an election make a judge change their behaviour before polling day, but those who have contributed to their success may be able to influence decisions going forward. This is a problem even before we consider that many of a judge’s campaign contributions actually come from law firms. This trend is by no means new, having been spotted by legal writers as far back as 20 years ago (Chemerinsky (1999)). As long as this is the state of play, there will always be the appearance of bias where a judge decides a case in favour of the side whose representatives have contributed to their successful election campaign.
Clearly, judicial elections run counter to the desirable traits of the judiciary - independence and impartiality. To make a judge subject to the same pressures that a politician normally faces is to simply convert them into a politician. In order for state judges to properly perform their role, they must be released from the obligation to raise funds, with the perception of bias that this creates, and the need to compete in a partisan environment. In the end, a decision cannot truly be independent or impartial if outside considerations could play a role in determining it.
Luckily for judicial candidates at the federal level, they don’t have to enter the political arena as many state judges have to. Under Article III of the United States Constitution, the President has the power to appoint a judge to a position and the Senate confirms that appointment. The framers of the constitution didn’t feel it necessary to give the other branches any additional checks on the exercise of judicial power apart from the power to appoint a judge and remove them as a consequence of misconduct or misdemeanour. This is because they understood that the limited number of legal instruments which a judge could pull from in order to decide a case would provide enough of a restriction on the exercise of their power. As Maddison put it, if the judge thought to rise above their station and undercut the exercise of power of another branch, their ‘projects of usurpation would immediately betray and defeat themselves’ (The Federalist No. 48). Therefore, adherence to text and precedent is the ultimate restraint on the exercise of judicial power.
From all of this, it’s easily understood that a judge’s role is a limited one, or at least it should be. According to Walker (2004), a federal judge must strive:
‘to identify the law based on a limited set of sources, with primacy always given to the text; to make an earnest attempt to discern the meaning of the words used from the context in which they appear; to apply the law to the facts of a particular case, mindful always of the limited nature of the enterprise; and to ensure at every step that personal preferences do not infect the process.’
In an ideal world, judges would perform this role, and there would be no danger of its corruption by the political sphere. But, of course, the involvement of the other two branches in the appointment and confirmation processes means that the federal courts cannot be saved from political contamination. Indeed, it seems that both the executive and the legislature are guilty of distorting the judiciary’s role.
Most of the discussion about a potential appointee surrounds whether the decisions they will make will be good for one party or the other. Will they hold a more rigid view of the Second Amendment, uphold bans on abortion providers, and value religious liberty? - Then they are branded ‘Conservative’ and will most likely be appointed and supported by Republicans. A judge who is seen to be more likely to uphold environmental protections and the rights of DACA recipients will more likely get Democrat support. This is how judges are viewed in the political sphere. However, if personal political preferences are to take precedence over binding precedent in a judge’s decision-making process, judges are not the impartial interpreters of the law, they’re merely political operatives. Yet, there is no sign that the folks in Washington will change their attitude any time soon.
President Trump has often attacked federal judges who have decided cases against his administration, even facing a rebuke from Supreme Court Chief Justice Roberts for calling a district court jurist an ‘Obama judge’. More substantively, the president’s appointments have seemingly sacrificed the qualities of experience and professional esteem for adherence to Conservative ideology. Some commentators point out that Trump’s appointments have been far from diverse (Tobias (2019)). In some cases, it has even been questioned whether an appointee is qualified to serve as a judge. Last year, the wife of former Republican senator David Vitter was confirmed as a district court judge in Louisiana. She was confirmed by the Republican-controlled Senate despite concerns over her extreme anti-abortion views, including a claim that chief abortion provider Planned Parenthood kills over 150,000 women a year. Another one of Trump’s appointees, Mark Norris, was confirmed as a District Judge for Tennessee, despite concern over previous divisive comments he had made, including the suggestion that “being Muslim is synonymous with being a terrorist”. Former District Judge Shira A Scheindlin called Norris one of "the least qualified and most bizarre" of Trump's judicial appointments in a New York Times op-ed.
The Senate, in holding confirmation hearings for appointees, is also guilty of adding to the distortion of the judiciary. Far too often appointees are prodded for their personal opinion on issues, in a clear attempt by the members of the Senate committee to show what side they’re on. Justice Ginsburg was asked directly during her 1993 confirmation hearing whether she supported the death penalty, and Justice Kagan faced a similar brand of questioning, this time concerning the Second Amendment. Even with all of the examples that have been already noted, the confirmation of Brett Kavanaugh to the Supreme Court in 2018 perhaps serves as the best example of the damage this politicisation does to the federal judiciary. In the midst of allegations of lurid actions from years past and sensationalised testimony from the accuser, vital questions concerning Kavanaugh’s qualifications and judicial experience would always be out of the spotlight. Many argue that his confirmation could go no further and that there had to be a formal investigation. The hearings continued despite these concerns. What followed, when Kavanaugh was allowed to give opening remarks, wouldn’t be out of place at one of the president’s campaign rallies. Kavanaugh, who was a sitting appeals court judge at the time, ranted at length about how everything that had gone on during the hearing was a ‘political hit’ designed as revenge for the 2016 election ‘on behalf of the Clintons’. To say that these sorts of remarks are unusual and inappropriate for a person of his standing is an understatement. However, they do provide a grave warning against treating judges as though they are just an extension of the political class. If you treat judges like politicians, sooner or later, they will start acting like politicians. This is exactly what was on show at the Kavanaugh hearings.
America is in a truly unique position. Nowhere else in the Western world is the judicial and the political so closely tied together. As has been explored, maybe there’s a good reason why the United States exists as an outlier in this respect. With elections at the state level, judges must sell themselves to maintain their tenure, so much so that their independence is compromised and their impartiality is rightly called into question. Federal judges may not face elections, but they’re lucky if they survive the partisan confirmation hearings whilst being able to dodge sharp political questions designed to bring them out of their shell. This process undoubtedly has a negative effect on those who go through it, as the Kavanaugh disaster demonstrates. At this point, it is almost uncontroversial to suggest that the system of government in the United States has three political branches. Perhaps the ‘independent judiciary’ is merely an illusion.