Judges and Elections - A Response to Sheila Kennedy

Prof. Sheila Kennedy - here - discusses problems with Indiana's system of judicial retention elections. In Indiana, when judges have been placed on the court of appeal or supreme court, they are subject to a simple   majority "yes or no" vote two years after sitting, then once every 10 years after that, in order to retain their seat on the court. See here for a good description of the process. Prof. Kennedy argues that this retention vote fails to insulate the judges from popular pressure, and that "small numbers of zealots can mount successful campaigns to defeat a judge they dislike."  She proceeds to argue that "Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require." The "small numbers of zealots" can be successful because "Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions." For instance, Justice Stephen David is up for retention election this year, along with several other court of appeals and supreme court justices. Justice David has come in for criticism for overturning Indiana's castle doctrine in the Barnes case. If you're not familiar with the case, there is no need to read it. It is enough to note that Justice David has a vocal minority (majority?) trying to spread information about his ruling and trying to see if they can get him removed. (I would like to register a quibble with the "don't even vote" statement - I chose a random sample of past judicial retention elections, and it appears that between 70% and 74% of voters voting in elections voted in the judicial retention election, with a vast majority voting yes. Hardly a "significant" number of nonvoters such that they would be easily swayed. I obtained my data here: http://www.in.gov/sos/elections/2400.htm).

A better way, says Prof. Kennedy, is the federal system, in which judges are appointed for life by the President, with advice and consent of the Senate. This shields the judge from anything populist except for impeachment, which is a high bar to removal. I happen to agree with Prof. Kennedy that neither straight elections nor retention elections are the best way. In addition, I believe that the federal system offers the best combination of insulation from partisan politics and responsibility to the electorate (via the President and Senators, combined with impeachment for truly bad behavior). Interestingly, Prof. Kennedy notes that "When the states established their own courts, however, they didn't always follow the federal model." Indiana did have a federal model in place for judicial selection in its 1816 Constitution, with 7 year terms, and no diminishment of salary during service.  However, in Indiana's second Constitution, of 1851, the state was divided into districts, with a member of the Supreme Court elected from each district. The justices served six year terms, served during "good behavior", and were placed on the bench by electors from each county. The electors, however, voted for the justices overall, rather than voting only for justices from their own district. Both of these methods insulated the judiciary from direct "attack" by making removal either time-based or impeachment-based.

I see in both the federal system, and the early Indiana systems, an attempt to strike a balance between responsibility to the electorate and insulation from the "mob" democracy with which the Founders were concerned. The later Indiana system, the eponymous Missouri Plan adopted in Indiana in 1970, also seems to try to strike that balance. For instance, it seems less insulated from the mob because of the simple majority retention requirement on two, then every ten, years in service. (This despite the statistics, not only in Indiana but nationwide (see here, for instance), that in 6,306 retention elections from 1964 - 2006, only 56 judges were removed. This is slightly different now, but not greatly.) What that said (and the following is conjecture), it seems that the legislators who adopted the "Missouri Plan" may have been trying to strike a balance, because the average citizen under the Missouri Plan has little to no impact on selection of Indiana Court of Appeals and Supreme Court justices.

In turning to the other side of the equation, the federal system and Indiana's early system had what I would call "front end" influence by the electorate. The people, via their representatives and the president, select justices, who then serve for life. However, in the "Missouri Plan" in Indiana, judges and lawyers submit applications to a judicial nominating committee when a vacancy occurs on the Court. Then, the committee conducts interviews, and sends three selections (by simple majority vote) to the governor, who must select one of those nominees, or the choice is made for the governor by the Chief Justice or acting Chief Justice of the Indiana Supreme Court after 60 days of inaction. The committee itself is made up of the Chief Justice, three members of the populace at large, and three members chosen only by members of the Indiana State Bar. Therefore, a majority of the members of the committee are not themselves responsible to the citizens of Indiana (as are the Senators in the federal system and the President) but only to the members of the bar. Therefore, the non-lawyer citizen in Indiana has a minority (if any) influence over the selection of the members of their courts of appeal. I would argue that the retention system permits back-end control over the members of the courts, whereby the front end is insulated greatly from popular control. If we were to modify the back end to service for life, and the front to remain the same, there would be very little influence over the judiciary by the populace at large. While the Founders wished for representative democracy, they were also very leery of any branch of government entirely outside of the control, directly or indirectly, of the people.

I would like to add one final thought, and that is the question of whether the court of appeals or supreme court ought to be more responsible to the population in terms of questions of constitutional morality. People lose respect for the law when it travels too far away from the "shared intuitions of justice" as argued persuasively by Paul Robinson, among others. I would suggest that, when the citizens of a state remove a judge or justice in a retention election, especially given the otherwise very high percentage of retained judges, the judge in question has transgressed or damaged the citizens' ideal of law,  has stepped beyond the bounds of those shared intuitions of justice, and has made himself or herself a beacon of disrespect for the law.