Fueled by the lingering (and largely erroneous) perception of a liberal judiciary, Republican presidential candidates are calling for new legislation to curb the power of federal judges. As the Washington Post reports, a majority of the Republican field is calling for some sort of judicial reform, including the abolition of lifetime tenure for federal judges and budget cuts for courts that dispense socially progressive decisions.
While it is easy to dismiss these candidates’ calls for reform as political pandering, the proposals nonetheless evoke many Americans’ longstanding discomfort with an appointed judiciary, within which power is exercised by individuals who remain unaccountable to voters. Indeed, concern about judges’ lack of accountability reached a fever pitch in the 19th century, causing a majority of states to move from appointed to elected state judiciaries and/or reducing the terms of office for state and local judges. The impetus for reform stemmed from citizens’ belief that subjecting judges to public scrutiny would force adjudicators to write opinions that tracked the law, not their politics. As Foster Hooper proclaimed at the 1853 Massachusetts constitutional convention, “[I]f you provide that [judges] shall come before the people for reelection, they will take care that their opinions reflect justice and right, because they cannot stand upon any other basis.”* Hooper and others believed that voters desired a fair and independent judiciary and would therefore vote out of office judges who failed to live up to those standards.
In actuality, the move from appointed to elected judiciaries caused judges to track public opinion – not the law. Over the last 50 years, judicial elections have been criticized as an instrument undermining judicial impartiality. “[I]f judges are subjected to regular election,” declared Justice Sandra Day O’Connor, “they are likely to feel that they have at least some stake in the outcome of every publicized case.” Statistical studies suggest that elected judges are loath to assume unpopular positions in controversial cases, particularly death penalty appeals. As former California Supreme Court Justice Otto Kaus lamented, “There’s no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time.”
By advocating for a more accountable judiciary, the Republican presidential candidates are bucking a trend favoring increased judicial independence – a trend propagated by conservative jurists like Justice O’Connor. The effect of these reforms, however, may work against the policy goals these candidates seek to further. As NYU professor Barry Friedman points out in the Post, eviscerating the power of the federal judiciary would increase the influence of state courts, which tend to be more liberal than their federal counterparts. Professor Friedman’s research presents a conundrum. Republican candidates appear to advocating for judicial reform as a means to further a conservative political agenda. Faced with the prospect that “the People” are not so conservative after all, the future Republican nominee may quiet the calls for an accountable bench.
* Official Report of the Debates and Proceedings in the State Convention, Assembled May 4th, 1853 to Revise and Amend the Constitution of the Commonwealth of Massachusetts (Boston: 1853), 700.