What Is an Independent Judiciary?
by Damon Huss
When trial judges preside over lawsuits and criminal trials, they make many legal rulings: Should this evidence be admitted? Should this objection be sustained? What law applies to this case? Is the law constitutional? If a party appeals, appellate court judges review these rulings. All judges — trial and appellate — are supposed to be fair and impartial. When judges interpret and apply the law, they must base their decisions on statutes, constitutional law, and prior court cases. They must never be swayed by politics or popular opinion. The rule of law (the fair application of the law to the powerful and the powerless alike) and our democracy depend on an independent judiciary.
The U.S. Constitution attempts to ensure judicial independence through certain checks and balances. All federal judges are appointed by the president, confirmed by the U.S. Senate, and serve for life. Under the Constitution, there is only one way that federal judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for “treason, bribery or other high crimes or misdemeanors.” The judge is then tried by the Senate. To remove the judge, two-thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House. Seven have been convicted by the Senate. All have been impeached for alleged criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy.
But most judges in the United States are not members of the federal judiciary. Most serve on state courts. And, unlike federal judges, most state judges have to face the voters. The question arises: How can states preserve judicial independence and still make judges accountable to voters?
In many states, voters can recall judges that they believe do not belong on the bench. People opposing a judge must get a certain number of signatures on recall petitions. Then the judge’s name is put on the ballot and voters decide whether they want to retain or recall the judge. If a majority votes to recall the judge, then the judge must be replaced — either by election or appointment, depending on the state.
Eighteen states hold direct, partisan elections for trial judges, and 21 states hold direct, nonpartisan elections for trial judges. Direct elections allow voters to elect judges in their district instead of the governor appointing every judge. In partisan elections, judges’ political party affiliations appear on the ballot. Thirty-eight states hold elections for state supreme court justices, and seven such states elect them in partisan elections.
In direct judicial elections, judges must raise money for campaigns, often from lawyers who will appear before them. That gives the appearance that lawyers are paying for favoritism. Judicial campaigns in themselves are problematic. Judges can’t make campaign promises that they will rule in a certain way. That would make the judge biased. Bringing judges into the political process can make them seem less neutral in the courtroom.
For these reasons, some states have moved away from direct election of judges. In these states, the governor usually appoints all state appellate court judges and most trial court judges. In some states the governor makes selections from a list prepared by a judicial commission, which searches for the most qualified judicial candidates.
But most of these states still require judges to face voters. Appellate judges usually go on the ballot in the next general election after being appointed. These are called retention elections, because voters get to decide whether or not to retain the judges. No one can run as a competing candidate. Citizens simply vote “yes” or “no” on retaining each of the judges. If voters retain them, they serve what remains of their term of office and then stand for election to a full term. Judicial terms vary from state to state; California appellate judges serve 12-year terms, whereas those in Ohio serve for six years.
Trial judges also go before the voters in the next general election after their appointment. But their terms are shorter, typically six years. And in some states, opponents can run against them.
This system has generally shielded judges from politics. It allows judges to serve long terms with a limited degree of accountability to voters.
But over the last couple of decades, some recall and retention elections have provoked controversy. For example, in California, an unsuccessful campaign targeted two justices in 1998 because they had voted to strike down a state law requiring minors to get parental consent before they get an abortion. In Iowa, voters successfully removed three justices in 2010 from the Iowa Supreme Court because the justices had voted unanimously to legalize same-sex marriage in the state. The leader of the campaign to remove the justices said, “It’s we the people, not we the courts.” Opposing the removal, Dean of California’s UC Berkeley School of Law Erwin Chemerinsky said removal “might cause judges in the future to be less willing to protect minorities out of fear they might be voted out of office.”
More recently, in 2018, voters in Santa Clara County, California, voted to remove a superior court trial judge because of the judge’s lenient sentence in a criminal case. In 2015, a jury found Brock Turner, a student and athlete at a local college, guilty of three felonies connected to his sexual assault of an unconscious woman. Prosecutors asked for a six-year prison sentence. However, Judge Aaron Persky only sentenced Turner to six months in jail and three years’ probation. Judge Persky cited the fact that Turner was drunk during the crime as a mitigating factor (a reason for lessening the punishment). Turner only served three months of his jail sentence.
In each of these cases, the people mounting the campaigns were upset with decisions the judges had made and accused them of misusing the law. Supporters of the judges saw the issue as one of judicial independence. They believed that judges should not be removed because they dare to make unpopular decisions.
The late Bernard Witkin, a noted legal scholar, warned: “What we’re seeing is a new way to approach judicial elections, challenging judges’ qualifications on the basis of particular decisions that affect particular groups. . . . If we reach the point where . . . we end up telling the court, ‘If you don’t do as we want, we’ll remove you,’ then the courts won’t be worth saving.”
Questions for Discussion
- What are the reasons for having an independent judiciary?
- Describe the different methods used to select judges. Which do you think is best? Why?
- In most states, judges are on the ballot. What do you think voters should consider when voting for judges?
This article was originally published as part of Constitutional Rights Foundation’s The Challenge of Democracy, a series of texts and lesson plans made possible by a generous grant from the W.M. Keck Foundation. Click here to access these educational materials on the themes of Governance, Diversity, Violence, and Information.
