Judicial Independence – How Do We Get There?

An independent judiciary – one that is not influenced by campaign contributors or special interest groups or religions or political parties or other power brokers.  Sounds like it should be the bedrock of a fair and impartial criminal justice system, doesn’t it?  Well … I’m afraid that ain’t what we got.

With the exception of Arizona (judges are appointed by the governor or elected on a non-partisan ballot), all US state level judgeships are elected political positons (just like prosecutors).  We all know that “Job 1” for any elected official is  to to get reelected.  This automatically sets in place a host of the “wrong” incentives for judicial job performance.  It’s human nature, and it’s a fact.  There will be pressure for politically elected judges to make judicial decisions that will accommodate the political base.  And I will have to opine that appointees by a governor, while not having to campaign for reelection, are also political postions.

I have some fairly extensive personal exposure to this.  My father was on the bench for over 20 years.  He kept getting reelected.  I “think” he was a good judge, but what I remember most clearly about his tenure was how political it was.  I have very clear memories of being down in the basement as a youngster stuffing sample ballots into envelopes, and I can’t count the number of times I was told while growing up, “It’s not what you know.  It’s who you know.”  And to get elected in DuPage County, Illinois, it was necessary to belong to a particular political party.  Granted, this is but a single data point, but I believe it is not unrepresentative.

Retired Supreme Court Justice Sandra Day O’Connor has devoted much of her post-court effort to the issue of judicial independence.  Her contention is that judges should be selected based upon an apolitical merit system.

Here is a NY Times article by Sandra Day O’Connor titled “Take Justice Off the Ballot”:

http://www.nytimes.com/2010/05/23/opinion/23oconnor.html?_r=1&scp=1&sq=sandra%20day%20&st=cse

Not only do I agree with Justice O’Connor, but I will also have to say that the very same logic and reasoning applies to prosecutors; perhaps even more so.