paradox of elected judges: Tension in the American judicial system, The

Fabian, John D

This Note asserts that a system of elected judges produces outcomes necessarily at odds with the goal of the ABA Model Code of Judicial Conduct: an independent judiciary that avoids the appearance of impropriety. To illustrate this conflict, this Note discusses violations of the Code of Judicial Conduct in the highly politicized arena of death penalty proceedings. After identifying these conflicts, the Note discusses the polar tensions of judicial independence and accountability in existing state judicial selection procedures. Having given that description, the Note evaluates which system best balances the interests of independence and accountability, in light of the goals of the Code of Judicial Conduct. Finally, assuming the absence of systemic changes, the Note discusses the role of lawyers and judges in ensuring the integrity of the judicial system and preserving the interests advanced by the Code.

INTRODUCTION

Judicial independence and autonomy are among the touchstones of the American legal system; the first two canons of the Model Code of Judicial Conduct mandate that a judge should "uphold the integrity and independence of the judiciary"1 and "avoid impropriety and the appearance of impropriety in all of the judge's activities."2 Imbedded in the American psyche is the principle that: "Judicial independence has been called `the backbone of the American democracy,' `the bulwark of the Constitution,' and `an indispensable element of our constitutional framework.'"3 In Federalist No. 78, Alexander Hamilton wrote:

[I]ndependence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and deliberate reflection, have a tendency, in the

meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.4

Despite these strong endorsements of judicial independence, elected judges in thirty-eight states must wonder if these lofty goals of judicial independence and integrity are given credence only in ivory towers of academia, or whether they have any meaning in reality.5 Otto Kaus, a California Supreme Court justice from 1980 to 1985, described the dilemma confronted by elected judges when they decide a controversial case while campaigning for reelection as "like finding a crocodile in your bathtub when you go in to shave in the morning. You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving."6

1. THE DEATH PENALTY, ELECTED JUDGES AND JUDICIAL INDEPENDENCE

Just ask Penny White of Tennessee, James Robertson of Mississippi, or Charles Campbell of Texas.

In 1996, Justice Penny White, after sitting on the Tennessee Supreme Court for one year, participated in her first death penalty case, State v. Odom.7 The Tennessee trial court refused to allow the defendant to present expert psychiatric testimony during the sentencing phase, because the court viewed such testimony as mere hearsay, notwithstanding the diagnosis and treatment exception to the hearsay rule recognized in that state. A unanimous Court of Criminal Appeals reversed the sentencing, remanding the case for a new sentencing hearing. The Tennessee Supreme Court, which at that time reviewed every capital case, agreed with the appellate court; in a routine hearing the Supreme Court affirmed the appellate court's decision.

In affirming the decision of the lower court, Justice White, along with two other justices, commented that the evidence used by the prosecution to establish aggravating circumstances of "heinous, atrocious and cruel" behavior as insufficient; her comment indicated her belief that the prosecution should be permitted to prove the aggravating circumstance at the new sentencing hearing. Six weeks before Justice White's next retention election, both Tennessee

Senators and the Governor campaigned against Justice White on the basis of the comment in State v. Odom; the Tennessee Republican party sent a mailing to 2,500 party leaders asking them to "just say no" to White's "liberal record" on criminal cases.8 The mailing failed to mention that all five Supreme Court Justices voted to overturn Odum's death sentence on other grounds. The Tennessee Police Benevolent Association reacted by claiming, "Justice White is more concerned with the scum's rights than she is with victims and the citizens of this state."9 In the retention election, with an 18.6% voter turnout, Justice White was defeated 55% to 45%.10

In 1992, Justice James L. Robertson of Mississippi was defeated in a contested election by challenger James L. Roberts, Jr. In a particularly virulent campaign, the Mississippi Prosecutor's Association endorsed Judge Roberts' candidacy as best representing "the views of the law abiding citizens in regards to the administration of criminal justice in this state."11 Following this endorsement, a campaign circular distorted Justice Robertson's opinions in two death penalty cases. The circular asserted that in Clemons v. State,12 Justice Robertson believed that a defendant who "shot an unarmed pizza delivery boy in cold-blood" did not deserve the death penalty.13 In truth, Justice Robertson had concurred in the decision affirming Clemons' capital murder conviction, and had merely dissented on the issue of the aggravating circumstance of "especially heinous, atrocious or cruel" behavior, in light of a decision by the United States Supreme Court reviewing identical language in an Oklahoma statute14 and finding it unconstitutionally vague.15 The circular also lambasted Justice Robertson regarding a second case, Minnick v. State,16 in which Justice Robertson alone dissented because of his conclusion that a confession violated the Sixth Amendment. The United States Supreme Court subsequently reversed both cases mentioned in the circular. In the election, Justice Robertson was defeated, despite being vindicated by the United States Supreme Court in both cases.

Perhaps the most disturbing example of the invasion of politics into the judiciary occurred in the Texas Court of Criminal Appeals elections in 1994. After the Court of Criminal Appeals reversed a conviction in a particularly heinous capital case, Rodriguez v. State,17 a former chairman of the state

Republican Party called for Republicans to take over the court.18 In a contest to defeat sitting Justice Charles Campbell, Stephen Mansfield campaigned on promises of greater use of the death penalty, greater use of the harmless error doctrine, and sanctions for attorneys who filed what he considered "frivolous appeals" in death penalty cases. With such a politically popular platform, he won the election, despite pre-election discoveries that he had misrepresented his record, had virtually no experience in criminal law, and had been fined for practicing law without a license in Florida.19

The defeats of Justices White, Robertson, and Campbell demonstrate how systems of judicial elections permit defeats of judges based on very small portions of their records; even though those records may be grossly distorted, even though their decisions are legally supported, and even when contested by challengers with dubious qualifications. The concerned observer must ask why these outcomes occurred.

II. POLITICIZED ISSUES AND JUDICIAL INDEPENDENCE

When it comes to non-political issues involving private disputes in contracts and torts, judges retain a large amount of independence to decide outcomes based on precedent, as The Federalist and supporters of judicial independence contemplate. However, when it comes to salient political issues such as the death penalty and abortion, judges face pressure from political parties, interest groups, and the media. The cases discussed above, involving Penny White, James Robertson, and Charles Campbell, all involved the death penalty. The death penalty arena offers the most bountiful spectrum in which impartiality comes into question. This Note argues that judges cannot at the same time both participate in such a highly charged electoral system and remain faithful to the Code of Judicial Conduct.

In death penalty cases, as in all cases, judges are expected to base their decisions on the Constitution and applicable precedent in their jurisdiction. The cases of Penny White, James Robertson, and Charles Campbell, however, suggest that judges who rely on the Constitution and controlling law in their states may very well be subject to removal from office. Elected judges who wish to remain in office face strong pressure to base their decisions on political realities rather than on the demands of the law. The natural outcome of such a situation is that, as political pressure builds over time and judges who rely on the law are replaced by judges whose decisions conform with the will of partisan voting majorities, cases will be determined solely by political will. Statistics appear to confirm this prediction. One study that examined the rate of affirmance of death sentences in California, Texas, Florida, Pennsylvania, Ohio and Virginia

from 1985 to 1995 found that, although these states affirmed only 63% of death sentences in 1985, they affirmed 90% of death sentences in 1995.20 In California, where three justices had been ousted in 1986 for their dissents in death penalty cases, the affirmance rate went from zero in 1985 to 94% in 1995.21 Apparently, judges had taken notice, and case results began to conform to political platforms.

For supporters of judicial elections, these changes represent a victory, shifting judicial decisions to accommodate the will of the majority of the people. One must wonder, however, what the cost of this victory may be. United States Supreme Court Justice Robert Jackson wrote:

The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.22

III. ACCOUNTABILITY VERSUS INDEPENDENCE

The dispute between those who share Justice Jackson's view and those who believe that judicial opinions should reflect the will of the majority represents an ongoing controversy over whether judges should be independent arbiters of legal principles, isolated from political life, or whether judges should be held accountable to the electorate for their decisions.

A. THE CASE FOR ACCOUNTABILITY

The dispute over accountability and independence, to a large extent, amounts to a conflict between those who espouse government by pure democracy and those who believe in a constitutional regime protecting political minorities from exploitation by political majorities. Those who espouse pure democracy are desirous of judicial accountability because of their belief that "when judges are unaccountable, they can thwart the will of the majority."23 Those who embrace the constitutional regime of government view independent judges as "the bulwarks of a limited Constitution."24 For them, "when those charged with checking the majority are themselves answerable to, and thus influenced by, the majority, the question arises how individual and minority protection is

secured."25

Proponents of accountability view independent courts as the vehicle for countermajoritarian evils. Alexander Bickel observed, "[w]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it."26

B. THE CASE FOR INDEPENDENCE

When courts make decisions contrary to the will of the majority, they have demonstrated the beauty of a constitutional government protective of the rights of the minority. When courts reach countermajoritarian decisions, they affirm the fact that ours is a government of laws where certain individual rights will be recognized regardless of the view of the majority. In a heterogeneous society such as ours, without the protections that these rights provide, citizens who are not members of the most dominant group would live their lives at the will and whim of the dominant group. As Croley writes, the independent judiciary protects the American view that, "[o]ver certain spheres, the majority possesses no immediate control. These spheres are designated as `rights,' and the individual is said to 'possess' these rights 'against' the majority, which is to say, against encroachment by majoritarian power.'"27

C. DANGERS OF AN ACCOUNTABILITY-BASED SYSTEM

State systems allowing elected judges reflect the victory of proponents of accountability over independence. These electoral systems permit the danger of two types of abuse in controversial cases, and lead to violations of the Model Code of Judicial Conduct. The two types of abuse are: 1) use of controversial cases by judges campaigning to win elections; and 2) use of controversial cases by political officials to force judges to conform to a particular political view, regardless of the judge's interpretation of the law. These abuses lead to violations of Canon 2,28 Canon 38(2),29 and Canon 5.30

1. ABUSE BY CAMPAIGNING JUDGES

In the Missouri case of State v. Kinder, the presiding judge, facing reelection, decided to switch from the Democratic to Republican party six days prior to the capital trial of Brian Kinder, an indigent black man.31 In a press-release announcing his party change, Kinder's judge-to-be wrote:

The truth is that I have noticed in recent years that the Democrat party places far too much emphasis on representing minorities such as homosexuals, people who don't want to work, and people with a skin that's any color but white. Their reverse-discriminatory quota and affirmative action, in the work place as well as in schools and colleges, are repugnant to me .... While minorities need to be represented or [sic] course, I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers in this country .... That majority group of our citizens seems to have been virtually forgotten by the Democrat party.32

Such a statement is a clear indication that the judge will consider the opinions of his party, and his own personal career interests, ahead of the rights of an indigent minority defendant such as Mr. Kinder.

In Atkins v. State, a lower court judge in Alabama was appointed to preside at a capital trial two weeks before an election in which he sought a seat on the circuit court. The judge denied a motion to continue the case even though the defense lawyer was suffering from complications of polio. Despite the fact that the denial of the motion was front-page news in the two local newspapers the weekend before the trial began, the judge refused a motion for change of venue. Moving quickly through the case, the judge, who was running a "law and order" campaign, oversaw a guilty verdict and a recommendation for the death penalty. Not surprisingly, the judge won election to the circuit court.33

In Nevius v. Warden, a Nevada Supreme Court justice running for reelection entered into a strategic political alliance with the state's attorney general, who urged Nevadans to vote for the justice in numerous advertisements. These advertisements included the justice's assertion that he had a "record of fighting crime," including seventy-six votes to affirm the death penalty.34 The justice won reelection.

2. ABUSE BY POLITICIANS

As mentioned above, after the 1986 ouster of three California Supreme Court justices, the death penalty affirmance rate rose from zero in 1985 to 94% in 1995. In the 1986 judicial campaign, California Governor George Deukmejian, after already announcing his opposition to Chief Justice Elizabeth Rose Bird because of her death penalty opinions, publicly warned Justices Grodin and Reynoso he would oppose them in their retention elections unless they voted to uphold more death sentences.35 When asked by reporters if he would endorse Grodin and Reynoso if they began affirming death penalty cases, Deukmejian replied, "It would certainly help a lot."36 Apparently dissatisfied with Grodin's and Reynoso's responses to his warnings, Deukmejian opposed them and both justices lost their subsequent elections.37

In the oft-mentioned case of Penny White, discussed above, Tennessee Governor Don Sundquist, discussing the election, said, "Should a judge look over his shoulder [in making decisions] about whether they're going to be thrown out of office? I hope so."38 Sundquist added, "Should people on the Supreme Court have to answer for their behavior or their judgment? Absolutely."39

3. POLITICAL ABUSE AND THE APPEARANCE OF IMPROPRIETY

In the cases discussed in the preceding two sections, the appearance of impropriety abounds, producing violations of Canon 2.

In State v. Kinder, the judge's statement apparently indicated a lack of impartiality to the indigent black defendant, who moved for recusal. Although the Missouri Supreme Court upheld the judge's refusal to disqualify himself, Justice Ronnie White issued a sharp dissent:

The slur [in the judge's press release] is not ambiguous or complex (nor, unfortunately, original): `While minorities need to be represented ..., I believe the time has come for us to place more emphasis and concern on the hard-working taxpayers in this country ....' No honest reading of this sentence can show that it says anything other than what it says: that minorities are not hard-working taxpayers .... The mere fact that a judge who issues a racially derogatory press release a week later claims to treat equally people who are `white, black, red, yellow, or whatever,' hardly `sets to rest any concern' about his impartiality.40

In Nevius, the case of the Nevada Supreme Court justice who campaigned alongside the state attorney general, a death penalty convict whose case came before the Nevada Supreme Court moved to recuse the justice because the attorney general represented the state in his prosecution. Although the Nevada Supreme Court denied the motion, Justice Springer dissented, saying:

`Tough on crime' claims made by judges in election campaigns are so common in Nevada as to go almost unnoticed. Our judicial discipline authorities customarily ignore this kind of judicial misconduct once the judge becomes elected or reelected. It goes beyond `tough on crime' for a judge to claim that he is a `crime fighter,' especially when, on top of this, the judge identifies his principal election supporter as being the State's attorney general. Judges are supposed to be judging crime not fighting it.41

Justices White and Springer recognized the obvious lack of impartiality in the cases where judges exploited controversial issues for political gain.

IV. ACCOUNTABILITY, ABUSES BY CAMPAIGNING JUDGES AND POLITICIANS, AND VIOLATIONS OF THE MODEL CODE OF JUDICIAL CONDUCT

A. CANON 2: AVOIDING THE APPEARANCE OF IMPROPRIETY

Canon 2 says, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities."42 In the Missouri and Nevada cases, Justices White and Springer discerned "apparent improprieties" giving rise to real concerns about the impartiality of elected judges. In this sense, both the Missouri and the Nevada electoral system for judges violate Canon 2. Likewise, it is virtually certain that death penalty defendants in the California Supreme Court after 1986, when the ouster of three justices yielded a change in the death penalty affirmance rate from zero to 94%, feared that politics had eliminated their opportunity to have their cases heard by an impartial court.

B. CANON 3(B)(2): AVOIDING INFLUENCE OF PARTISAN INTERESTS,

PUBLIC CLAMOR, OR FEAR OF CRITICISM

Canon 3(B)(2) provides that, "A judge shall not be swayed by partisan interests, public clamor or fear of criticism."43 Clearly, partisan interests and fears of criticism have sometimes swayed judges. Penny White recalled an encounter while she was teaching at the National Judicial College: Upon asking a judge in her class to make a ruling on a motion that clearly should have been found in the defendant's favor, the judge answered, "Motion is respectfully

denied." Justice White replied, "No, Judge, wait, you don't understand; the law in your state requires you to grant the motion."44 Again, he answered, "Motion is respectfully denied." Justice White described, "I explained it to him a third time. He looked me in the eye, in a room full of judges from all over the country and said, `Motion is respectfully denied. That's for the appellate court to worry about. I'll have my job tomorrow, and you don't have yours.'"45

United States Supreme Court Justice John Paul Stevens recognized the constant violations of Canon 3(B)(2) created by a system of electoral judges, observing:

The `higher authority' to whom present-day capital judges may be `too responsive' is a political climate in which judges who covet higher office - or merely wish to remain judges - must constantly profess their fealty to the death penalty .... The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.46

C. CANON 5: NO STATEMENTS COMMITTING ON ISSUES

AND NO PROMISES

Canon 5 of the ABA Model Code of Judicial Conduct states that, "A candidate for judicial office shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."47 In Nevius, discussed above, the Nevada Supreme Court justice actively campaigned with the state attorney general and proclaimed his record of fighting crime and highlighted his pro-death penalty votes. If these statements do not commit him to specific decisions, they certainly appear to commit him to issues and policies, a violation of Canon 5. Such statements offer listeners no pretense of impartiality.

Even more troubling than the Nevada situation is the Texas campaign noted above, in which Stephen Mansfield campaigned on promises of greater use of the death penalty and greater use of the harmless error doctrine. When death penalty cases come before Judge Mansfield in Texas, he has two options: 1) follow the campaign promises he made, committing him to use the death penalty, thus violating Canon 5; or 2) recant his campaign promise, and consequently fear ouster from office. Judge Mansfield has thus made himself not an arbiter of the law in individual cases, but an automaton under the control of current political opinion.

Describing this reduction of judges to rubber stamps, Robert Stephens states, "If judges are to be directly responsible to the public, then the judicial system ought to be abolished and every time an issue comes up just have a vote on whether X should be convicted or whether this decision should be made."48 When political pressures force a judge to base decisions on factors outside the law, the judicial system has failed entirely. "Once a judge makes a decision influenced by political considerations, in violation of the oath he or she has taken to uphold the law, both the judge and the judicial system are diminished, not only in that case, but in all cases."49 In fact, these elected officials are not judging at all, but merely enacting the will of the majority, demonstrating the paradox of the elected "judge."

V. CONFRONTING IMPROPRIETY AND THE FAILURE OF JUDGING

The previous section demonstrates that, at least in controversial cases, systems of elections force judges into frequent violations of the ABA Model Code of Judicial Conduct. The current models of judicial elections and the provisions of the Model Code simply cannot coexist. In response to this dilemma, this Note will make suggestions for reform in two areas. First, after describing current methods of judicial selection, it will evaluate the best aspects of current systems to suggest systemic changes enabling judicial reformers to address the conflict between political influence of elected judges and impartial, independent judging; it ultimately concludes that electoral systems should be abandoned. Second, recognizing that the electoral methods will likely remain in place, this Note suggests reforms within the current systems that will strengthen the independence of the judiciary and lead to legitimate legal outcomes that will breed confidence in our judicial system.

Before addressing solutions to the ethical dilemmas created by the elected judiciary, one must have a basic understanding of the current systems of judicial selection.

A. HISTORY OF JUDICIAL SELECTION

In colonial times, the American governments chose their judges in the same manner that federal judges are selected today-through executive selection, after which judges held office during good behavior.50 This system predominated throughout the early nineteenth-century, based primarily on the belief that executive appointment best secured competent jurists who could "rule objectively and independently without fear of reprisal."51

The rise of Jacksonian "populist democracy" ushered in distrust of appointment methods, which allowed political cronies and family members access to the judiciary. This new view rested instead upon the philosophy that "everyone, including judges, should be popularly elected and subject to the will of the people."52 In 1846, New York amended its constitution to require judicial elections; by 1856, fifteen of the twenty-nine states had opted for judicial elections.53 Thereafter, "all twenty states entering the Union from 1856 until Alaska's entrance in 1959 adopted elected judiciaries."54

The late nineteenth century, however, saw the rise of the political machine dominating local and national government and the selection of judges.55 Distrust of the political machines aroused distrust of the judges they selected, and reformers began to criticize the system of judicial elections. Roscoe Pound expressed this sentiment in his 1906 address, The Causes of Popular Dissatisfaction with the Administration of Justice; "Putting courts into politics, and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench."56

States began experimenting with alternative methods for judicial selection. One solution to judicial politicization was the development of the non-partisan ballot to "take judges out of politics."57 Later, Albert Kales, a member of the American Judicature Society founded by Pound, developed another alternative to contested political elections. Under Kales' system, voters would elect a chief justice, and the chief justice would appoint the remaining judiciary; these judges would then be subject to retention elections at regular intervals.58

B. REFORMING THE ELECTIVE SYSTEMS: COMMISSION APPOINTMENT,

RETENTION ELECTION

Currently, the states use four primary methods of judicial selection: 1) partisan elections; 2) non-partisan elections; 3) a variation of Kales' plan, with retention elections; or 4) executive or legislative appointment, with no elections.

1. SYSTEMS OF PARTISAN ELECTIONS

In a system of partisan elections, the dangers accompanying an elected judiciary are at their peak. Judges are most tempted to violate Canon 5 - which forbids judges to make pledges or promises of conduct or to make statements that

commit or appear to commit them to certain opinions - when they campaign in a race as members of political parties. Parties necessarily have political platforms; when cases involve politicized issues such as the death penalty, judges who are members of political parties cannot avoid the appearance that they have at least implicitly and indirectly committed themselves regarding issues in cases before them. Two pointed examples are the statements made by the Missouri judge in Kinder who switched from the Democratic to the Republican Party, condemning homosexuals, criticizing nonwhites and taking issue with affirmative action programs, and the statements made by Stephen Mansfield in his campaign in Texas, where the Republican Party maintains a virtual monopoly over the Texas Court of Criminal Appeals.

When judges run as members of political parties they are also likely to violate Canon 3, which demands that judges not be under the influence of partisan interests. Imagine a judge with the notation, (R-TX), next to his name, in the manner that the media identifies legislators. A party before him could not help but imagine that Judge John Doe (R-TX) would be inclined to favor the death penalty. It is entirely contradictory to view judges as members of political parties and at the same time claim that they are not swayed by partisan interests. As members of political parties, judges publicly endorse partisan interests that can be expected to influence their decisions, at least subconsciously. One author has written:

In many states in order to obtain judicial office a candidate must not only participate in a party campaign, but must almost constantly be active in party politics, and is subject to being defeated along with his party, or for an unpopular decision, or for reasons not fundamentally connected with his judicial performance. Unfortunately despite much good will and earnest effort partisan pressures predominate wherever judges are elected; `the selection of a judge by this method is not only influenced by politics; it is politics itself.'59

Futhermore, when judges campaign as members of political parties, the potential for violations of Canon 2 is heightened; allowing judges to be members of political parties creates a nearly per se appearance of impropriety, primarily for the reasons discussed in the previous two paragraphs. Judges are not supposed to be committed on issues (Canon 5); when judges are members of political parties, it will appear that they are committed on politicized issues such as the death penalty, creating an appearance of impropriety. Judges are not supposed to be swayed by partisan interests (Canon 3); when they are members of political parties, in all cases where their decisions run parallel with their parties' interests, it will appear that they have been swayed by those interests, creating an appearance of impropriety.

2. SYSTEMS OF NON-PARTISAN ELECTIONS

A system of non-partisan elections only slightly minimizes the dangers involved in partisan elections. Candidates are still tempted to violate Canon 5 by making statements or comments that appear to commit their opinions in cases. Judges facing an impending election may still be very likely to violate Canon 3's command to not be swayed by partisan interests, public clamor, or fear of criticism. As a result, the appearance of impropriety still abounds, and violations of Canon 2 are inevitable and continuous. Furthermore, voters, who are ill informed when they vote in partisan elections, are even less informed in a system of non-partisan elections. Voters often have no idea for whom or for what they are voting.

3. THE MISSOURI PLAN: KALES' PLAN IN ACTION

In 1940, Missouri adopted a system based on Kales' plan, wherein the governor is required to appoint one of three judicial candidates whose names are submitted by a judicial nominating commission. The Chief Justice chairs the commission, the governor appoints three lay members, and the bar association elects three lawyers.60 The judges are then subject to retention elections at the end of their terms, which vary according to judicial position.61

4. SYSTEMS WITH RETENTION ELECTIONS

Systems with gubernatorial appointment and retention elections, though well intentioned, fare little better than systems with contested elections. As demonstrated by the California purge of 1986, and by the retention election of Penny White, the potential for abuse by candidates or outside parties remains as great in retention elections as in contested elections. Judges facing a retention election, once again, face a temptation to make statements that will commit them to positions; they again are subject to influence by partisan interests and fear of criticism-as a result, they may convey an appearance of impropriety. Even with retention elections, a system of elected judges is necessarily at odds with the commands of the Model Code of Judicial Conduct.

5. HAWAII COMMISSION SYSTEM - A VARIATION WITHOUT RETENTION ELECTIONS

Another commission-based method of appointment has been adopted in Hawaii. Hawaii's plan creates a judicial commission consisting of nine members. Three are appointed by the governor, two by the Chief Justice, two by attorneys licensed to practice in the state, and one each by the president of the state Senate

and the Speaker of the House.62 The commission provides a list of six or more nominees from which the governor selects judges, subject to the consent of the Senate.63 Six months prior to the expiration of his term, a judge must indicate to the commission whether he desires reappointment; if he does, the commission determines whether the judge will remain on the bench.64 Thus, judges are retained based on the judgment of the commission, rather than on the opinions of the voters.

VI. REFORMING THE CURRENT JUDICIAL SELECTION SYSTEMS:

APPLYING THE BEST SYSTEM

The Hawaii system offers a model that balances the interests of those who desire accountability and the interests of those who promote the integrity of the judicial system through the commands of the Model Code of Judicial Conduct. Believers in a purely electoral system will assert that a system without election merely shifts impropriety from electoral pressures to the appointment process, and that partisan interests will infect the appointment system and allow those with access to the commission to control the judiciary. Before squarely addressing this objection, however, it is important to note the benefits of the Hawaii system.

A. HAWAII'S COMMISSION SYSTEM

First, the selection of judges is informed by those best positioned to have relevant information regarding judges-a commission composed of attorneys and other members who commonly evaluate judges. Second, the commission satisfies accountability interests when it reviews the record of the judge upon his indication that he seeks reappointment. The benefit of this type of accountability lies in the fact that judges will be evaluated based on their entire record, rather than on a single controversial case; thus, a judge faces little pressure that will force him to commit on any particular issue or to be swayed by partisan interests or fear of criticism in a particular case. Third, and most importantly, this system ensures that when a judge rises to the bench with the knowledge that he will be evaluated on his entire record, he retains an incentive to base his decisions on the law, rather than on political pressure, because he knows that his record will be reviewed by those who know the law.

Returning to the objection that appointment of judges merely shifts the potential for influence to those who have access to the committee, the fact remains that an appointment system carries less potential for ethical violations

than a system based on elections. Certainly, politics will play a role in the selection process, as the president of the senate, speaker of the house, and the governor will likely appoint commissioners whose political viewpoints reflect their own. One innovation Hawaii created to reduce politicization of the commission has been to appoint commissioners for staggered terms of six years each, with no member serving for more than one full term.65 Moreover, judges appointed through the commission system simply do not face the same ethical dilemmas that elected judges face. Appointed judges have little or no incentive to make statements that will commit them on particular issues. Canon 5 violations will be virtually eliminated. Because the judge will be reviewed by the commission based on his record, rather than by individuals with strictly political interests, he will be more likely to follow the law rather than public clamor, thus greatly reducing the potential for Canon 3 violations.

James Koshiba, the first chairperson of the commission, noted that decreasing the influence of politics in the appointment process "has drawn out people who would not have otherwise applied.... [T]he position of the Chief Justice produced as candidates, leading members of the bar and bench and was inspiring and heartwarming."66 Not only does a commission system reduce the number of occasions creating the appearance of impropriety compared to the elective system, but it also attracts skilled judges who would not be willing to participate in the elective process. Koshiba reflected, "In general the appointments have been met with public approval and the Commission has thus far been considered to be an improvement over the pre-existing system."67

In order to achieve a system that promotes fairness and integrity, each state should be encouraged to evaluate the Hawaii system, and adopt those portions of the system that assist them in the elimination of ethical violations and the appearance of impropriety. The most desirable aspect of the system is that judges are evaluated and retained by officials informed about the law, and evaluated based on their entire records; as a result, there will be little pressure or incentive for judges to decide politicized cases contrary to the rule of law when doing so appeases the political majority. Moreover, because the electoral process is removed from the system, political opportunists will no longer to be able to persuade uninformed electors to base their decisions on misrepresentations of the facts and the law. Independence will be greatly strengthened, and improprieties drastically reduced.

B. JUDICIAL INTEGRITY AND THE ELIMINATION OF ELECTIONS

The strength of the judicial system lies in its legitimacy; when the appearances of impropriety arise more frequently, the legitimacy of courts evaporates. At that

point, our system of constitutional government has failed, and the law yields to the whim of the majority. Because judicial elections breed the appearance of impropriety, especially in the context of the highly politicized cases that are of most concern to the public; because these appearances of impropriety betray the integrity of the system; and because the foundation of the system is its legitimacy; judicial elections should be eliminated.

C. REFORMS WITHIN THE ELECTIVE SYSTEM

Although in an ideal world states would abandon elections as a method of judicial selection, the fact remains that judicial elections remain popular in many areas. A recent survey in Kansas found that 63% of citizens favor election rather than appointment of district judges, and 54% favor election of appellate judges.68 Absent elimination of judicial elections, what reforms might be adopted to reduce the appearance of impropriety and decrease the incentive for ethical violations?

1. LONGER TERMS

First, judges should serve longer terms. Longer terms will permit judges to build more voluminous records of decisions and will reduce the likelihood that they will be ousted because of a single decision or a few controversial decisions. Furthermore, judges serving short terms will constantly fear reprisals in the next election, and will face greater temptation to use cases to their advantage in election races. Longer terms will permit judges to focus more on judging and less on campaigning.

2. ROTATING DISTRICTS: REDUCING POLITICAL PRESSURE

Next, judges should rotate districts, so that they do not hear controversial cases under the influence of their constituencies. In North and South Carolina, judges rotate among the judicial districts within their state, because of the belief that "when out of his county of residence, the judge is relieved from the political pressure of having to portray himself as the protector of his community; a judge would not necessarily stand for election in the very place in which he had made controversial rulings."69

D. THE ROLE OF THE BAR

Finally, and most importantly, in systems which permit elected judges, the organized bar should make aggressive efforts to protect the ethics and integrity of the legal profession. Improprieties most often occur, ethics are most often

sacrificed, and the legitimacy of the judicial system is most threatened, when judges are tempted to make statements indicating they will not rule impartially or when they make biased decisions in order to get elected and retain their jobs. These temptations arise when constitutional rights or legal precedent in their jurisdiction demands an outcome different from what the facts of the case lead the majority of the population to conclude. Attacks against judges "almost never deal with the legal basis for their ruling, but are based entirely on the facts of the crime and the result, such as whether a death sentence was upheld or reversed."70

1. PROFESSIONAL LAWYERS INFORMING THE PUBLIC

Because the public and the media often view constitutional rights and legal precedents as "technicalities" when they lead to an acquittal or a reduction of a sentence, in cases where the public is clamoring for a guilty verdict that would be contrary to the law, the bar should help to insulate judges from political pressure-or at least reduce political pressure-by reminding voters why our system chooses to recognize constitutional rights and the rule of law, even when they might lead to undesirable outcomes in isolated cases. As Stephen Bright reminds the profession:

It should not be impossible to convince people that laws that are applied only when convenient protect no one and that judges must be independent in order to enforce the laws. But prominent members of the legal profession, who have the wealth and power to be heard, must take time from the relentless pursuit of money, get off the golf courses and out of the skyboxes and take up these efforts.71

In addition to reminding people the benefits of a system of laws that protect individual rights, the bar should make an organized effort to counter false or misleading statements regarding a judge facing political pressure in an upcoming election. Consider the following two cases:

When Penny White was ousted in Tennessee, the GOP told voters that Justice White had personally overturned the conviction in the case, even though all five members of the Supreme Court voted to overturn Odum's death sentence.72 GOP leaders stressed that White had never voted to uphold a death penalty conviction, even though she had issued a ruling on only one death penalty case in her nineteen months on the court.73 Meanwhile, Justice White was unable to respond to the criticisms; because the case was still pending, canons of judicial conduct prevented her from commenting on the case. The false criticisms received no response. The unfortunate outcome of her election is unsurprising.

In Florida, special interest groups engaged in a huge campaign against the retention of Chief Justice Rosemary Barkett. Although she had voted to affirm a number of death penalty cases, the campaign was based on a grossly distorted version of her votes in capital cases. When these distortions were publicized, the Florida bar "got together, raised money, got out there, and got the true word out on Judge Barkett, and the people of Florida then retained her in the election."74

In the case of Justice White, when false representations regarding her record went unchallenged, she was not retained, and judicial independence suffered a setback. In the case of Chief Justice Barkett, on the other hand, the bar responded to false representations, she was reelected, and judicial independence was bolstered.

2. RULE 8.2: DEFENDING JUDGES UNJUSTLY CRITICIZED

In fact, Rule 8.2 of the ABA Model Rules of Professional Conduct recognizes an attorney's duty to defend judges from false representations. Comment 3 states, "To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized."75 The entire legal system benefits from a judge's ability to make rulings independently and impartially based on the law, rather than as a result of political pressure. Lawyers have a duty to take action to ensure that judges have this ability.

E. JUDGES AS PROFESSIONALS: RESISTING TEMPTATION

Finally, in addition to the duty of the attorney as a professional to take action to defend judges who are subject to improper and misleading criticism, judges have a duty as professionals to base their rulings on the rights protected by the Constitution and on the legal precedents developed in their jurisdiction. First, all citizens should take action to demand that the government design judicial systems ensuring that judges are able to rule independently and impartially. Systems requiring the election of judges should be dismantled. Second, regardless of the system in use for the selection of judges, lawyers have a duty as professionals to speak out to defend independent judges, and to protect the rule of constitutional law, to ensure that judges protect the interests not only of the majority, but of all citizens within their jurisdiction. Third, regardless of the system for selection of judges, and regardless of the organized bar's acceptance of its duty to further judicial independence, individual judges have a duty to ensure that in each individual case they make rulings based on the merits of the

case and on the legal precedents that demand that they ignore outside pressures. Stephen Bright asserts:

Conscientious state court judges must begin a process of serious selfexamination.... They must ask themselves to what extent they have been influenced, even subconsciously, in making their decisions by the need for public approval to stay in office, and whether that influence is compatible with their constitutional responsibilities as judges. Are they politicians or judges? Do they base their decisions on what will get them elected or the dictates of Supreme Court opinions, which may, in a particular case, be very unpopular?76

CONCLUSION

First-year law students in law schools across the country experience discomfort and disgust when they read the sixty-five year old decision of Brown v. Mississippi.77 In Brown, the United States Supreme Court overturned three death sentences that been upheld in the Mississippi Supreme Court, noting the procedures used by law enforcement to obtain the defendants' confessions:

Upon [Ellington's] denial, [the deputy sheriff and other men] seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released.... A day or two thereafter, the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the State of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.78

Most likely because the judges on the Mississippi courts either agreed with the biases of the majority in their state, or because they feared the consequences of disagreement with those biases, they allowed these horrific convictions to stand. In a triumph of the recognition of individual constitutional rights over the whim of the majority of that time, the United States Supreme Court reversed the sentences, noting that "the transcript reads more like pages tom from some medieval account, than a record made within the confines of modern civilization which aspires to an enlightened constitutional government."79

Sixty-five years from now, law students may be reading about cases in which death sentences are affirmed in Texas despite the fact that the defendants' lawyers either slept or were intoxicated throughout their trials.80 They will likely experience the same disgust that law students feel today when they read about Brown v. Mississippi. But until systems of electoral judges are dismantled, and lawyers recognize a duty to speak out for the independence of the judiciary, judges such as Stephen Mansfield will continue to make promises of more death sentences; judges such as Penny White will be ousted from office because of false representations regarding their decisions; and judges such as James Robertson will lose elections despite the fact that their legally correct decisions were vindicated by the Supreme Court.

In 1821, Justice Joseph Story stated, "It is in vain that we insert bills of rights in our constitutions, as checks upon legislative power, unless there be firmness in courts, in the hour of trial, to resist the fashionable opinions of the day."81

Until lawyers take action to ensure the independence of judges, to ensure that there be firmness in the courts to resist the fashionable opinions of the day, one must ask: Has our system of constitutional government progressed in the sixty-five years since Brown v. Mississippi? If not, where do we go from here?

The debate over methods of judicial selection yields no simple answer. However, in determining which system is the best of the several competing systems, a number of interests should influence the debate toward the conclusion that a system of appointed judges similar to the Hawaiian system bests serves the values of both the society of lawyers, and of American society as a whole. An appointive system will produce fewer violations of Canons 2, 3, and 5-appointed judges are less likely than elected judges to be influenced by partisan interests, public clamor or fear of criticism; appointed judges are less likely than elected judges to make statements or promises committing them on issues; and as a result, appointed judges are better able than elected judges to avoid impropriety and the appearance of impropriety in all of the judges' activities. Concerning the interests of American society as a whole, ours is not a pure democracy governed by the majority. Ours is a constitutional government in which minority rights must not be sacrificed. Independent judges are better able to follow the Constitution and the laws in making their decisions, and they face far less pressure to conform their opinions with those of the political majority.

In order to achieve the best justice, we should look to the view espoused by Arthur Vanderbilt:

In the eight centuries or more in which the judicial office has evolved in the Anglo-American system of law, three essentials stand out in any definition of a true judge. These are impartiality, independence and immunity. Of these impartiality is the most important; independence and immunity are the means of achieving impartiality. Judges should be free from every tie that may sway their judgment. They should be answerable to no one and immune from liability for judicial acts, to the end that justice may be administered without favor.82

We must embrace independence and shun the abuses that accompany judicial elections.

JoHN D. FABIAN*

* J.D., Georgetown University Law Center, May 2002 (expected). Thanks to my mother and father, to whom I am eternally grateful. Thank you also to Stephen Bright for his inspirational work in this area.

Copyright Georgetown University Law Center Fall 2001
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