CAMDEN — For more than two centuries, Americans have struggled with how to strike the proper balance between judicial independence and judicial accountability, and this debate continues to the present day.
In his new book, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford University Press, 2012), internationally noted constitutional scholar G. Alan Tarr, a professor of political science at Rutgers–Camden, asks how we can hold judges accountable while maintaining their independence.
“On one hand, we want judges to be free to decide impartially based on the law,” Tarr says. “On the other hand, because their rulings have important policy consequences —think abortion, same-sex marriage, and racial desegregation —we want to have some control over how they decide. The book focuses on the ways in which the states have attempted to deal with this over time.”
Judicial independence refers to removing external influences that could interfere with a judge’s ability to impartially decide cases.
In his book, Tarr classifies champions of judicial independence as “defenders.” These defenders say external pressures come from those who seek to influence judges to make politically acceptable decisions.
But people Tarr describes as “bashers” say if judges are too independent, they are free to pursue their own ideological or political agendas at the expense of fidelity to the law. The judges are making important policy decisions or affecting public policy in their decision making.
If that kind of power is being exercised, bashers say the people should have some control over how it’s being exercised and judges should be held accountable for their decisions.
Tarr notes in the introduction of his book, “Legislative steps to curtail judicial power are portrayed as attempts to intimidate judges and threaten their independence. Efforts to hold state judges electorally accountable for their rulings are condemned for the same reasons.”
Tarr traces the debate over judicial independence and accountability in the states from America’s early years to the present day. At the outset, most state judges were appointed by the governor, a method New Jersey still uses today (the method is the same at the federal level, with the President of the United States appointing Supreme Court justices).
“That model is very much a minority model among states across the nation,” Tarr says. “Over time, there was concern about party bosses dictating who sat on the bench. Judicial elections developed in the mid-19th Century to depoliticize the process. That didn’t work and the many states moved to so-called merit selection, but that reform movement died in the 1980s.”
Today, 39 states hold elections for their Supreme Court justices and races for those seats have become politically charged. Most of the current debate about judicial independence and judicial accountability in the states revolves around judicial elections, Tarr says.
“Part of the argument is that it’s going to be political no matter what system you use,” Tarr says. “So the question becomes, how do you get judicial accountability while maintaining independence?”
One suggestion Tarr makes is that every judge — no matter the process of selection — serve a set number of years without reappointment at the end of the term.
“It seems to me that the real problem with judicial independence is that judges may make decision with an eye to the forthcoming election or reappointment,” Tarr says. “But if there is no second term, you can take away that sort of pressure on sitting judges.”
Tarr notes in his book that a single, nonrenewable term would seem inadequate for many “bashers” because judges who are perceived as making rather than interpreting the law are not threatened with the loss of their positions.
Recent proposals to safeguard judicial independence or promote accountability also include the greater use of recusal and disqualification for judges who receive campaign contributions and the public financing of judicial elections.
Tarr writes that because judges who are elected depend on campaign contributions, their decisions could be influenced by gratitude for past contributions or the hope of future donations.
A Camden resident, Tarr directs the Rutgers–Camden Center for State Constitutional Studies. He has consulted with numerous state legislatures and Supreme Courts on the complexities of state constitutions.
The Rutgers–Camden scholar is the co-author of numerous books, including State Supreme Courts in State and Nation (Yale University Press, 1990) and American Constitutional Law (Westview Press, 2009), now in its eighth edition.
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Media Contact: Ed Moorhouse