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Abstract:
In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle, before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know and don't know about the assumptions that underlie the arguments of the disputants, so as to better frame future study and debate.

Judicial elections, Judicial appointment, Judicial independence, Judicial accountability, Judicial conduct, Judicial ethics, Merit selection, Judicial selection

Abstract:
The article examines the threat to judicial independence from political calls for more judicial accountability. The author begins by defining judicial accountability and discussing its purposes before breaking the concept down into three categories: institutional accountability, behavioral accountability, and decisional accountability. This process reveals that in the judicial accountability family, there is but one discrete sub-species, situated in the decisional accountability genus, that does not further accountability's proper purpose and is therefore conceptually problematic: direct political accountability for competent and honest judicial decision-making error that the politicians desire and a serious threat to judicial independence. The critical question becomes one of classification: how does one distinguish honest disagreements as to applicable facts and law, for which direct political accountability is inappropriate, from deliberate usurpations of political power, which are properly subject to sanction? In order to determine the difference between honest judicial mistakes and dishonorable usurpations of power, the author argues that the judge's state of mind must be the principal factor, and that in cases of decision-making error, the presumption should be that the judge in question was competent and honest, absent extrinsic evidence to the contrary.

Judges, Judicial independence, Judicial accountability, Judicial criticism

Abstract:
In this article, the author seeks to explain why some incursions on judicial autonomy are deemed acceptable and others are not. Part I defines judicial independence in a way that not only accommodates, but necessitates an approach that is political and developmental in its orientation: the contours of judicial independence are delineated less by court made doctrine, than by informal norms or customs that Congress has gradually come to respect over time. Part II chronicles the development of customary independence through the cyclical attacks on the courts that punctuate phases in the relationship between the federal courts and the political branches in ways that justify their use. Part III discusses how fights to control the courts are easier for Congress to win in the appointments arena, where independence norms have not constrained Congressional behavior as they have in other contexts. As the opportunities to control the courts via impeachment, defiance, court-packing, jurisdiction-stripping, and budget-slashing have diminished with the ascendance of customary independence, the appointments process has emerged as the one remaining avenue for Congress to exert control over judicial decision-making. Given the dawning realization that a politicized appointments process now stands alone as a viable device for promoting prospective judicial decision-making accountability, ongoing efforts to de-politicize the appointments process are likely to be fruitless and may actually be undesirable.

Judges, Judicial independence, Judicial accountability, Judicial history, Court organization, Court structure, Jurisdiction, Judicial criticism

Abstract:
Public confidence in the courts is a matter of perception or appearance that may be present or absent irrespective of whether public confidence is warranted in fact. Court defenders, who are convinced that judges (on the whole) have acted properly and deserve the public's trust, have thus devoted themselves to ensuring that judges appear to act properly too. This chapter explores the century-long campaign to regulate appearances of judicial impropriety and the consequences of that campaign - intended and not - for an impartial judiciary and public confidence in the courts. The author chronicles the emergence and eventual entrenchment of rules regulating the appearance of judicial impropriety. As regulators came to take appearances ever more seriously, they promulgated enforceable rules that prohibited judges from saying things or associating with others in ways that could create appearance problems. Paradoxically, this effort to strengthen rules regulating appearances by making them more enforceable may (to an as yet uncertain extent) have had the opposite effect, rendering them vulnerable to constitutional challenge on first amendment grounds. The net effect has been a detectable shift away from rules prohibiting speech or association that creates appearance problems, toward rules that implicitly authorize the underlying speech or association but require judges who thereby create appearance problems to disqualify themselves from cases in which such problems would call their impartiality into question. This development has potentially profound implications and suggests the possibility of a new paradigm in which judges are welcomed into the marketplace of ideas and encouraged, not just permitted, to say what is on their minds (on the theory that more speech is always better than less), so that litigants can better inform themselves of judicial biases that may warrant disqualification. There are two possible consequences: One is that judges will start to recuse themselves en masse from cases raising issues upon which they have taken public positions. Second, and more likely, judges will reinterpret the disqualification rules to allow judges to hear cases despite appearance problems created by their speech and association, so as to ensure an adequate judicial workforce. In that event, what was once a system of regulation designed to minimize appearance problems will have gradually given way to a system of partial impartiality that cultivates them.

Judges, Judicial independence, Judicial accountability, Judicial elections, Judicial Selection, Judicial Speech, Public confidence, Appearance of impropriety, Impartiality, Judicial ethics, Code of Judicial Conduct, Judicial criticism, Disqualification

Abstract:
This piece argues that a significant gap in our understanding of judicial independence is attributable to a failure to analyze judicial independence with reference to the sources of that independence. The prevailing, though often unstated assumption is that the judiciary's independence derives largely from the text of the Constitution and court-generated doctrine, which in reality have little to say about the contours of the judiciary's autonomy. In contrast, Constitutional customs or norms that Congress employs in deciding whether and how to regulate the third branch exert far more influence over the judiciary's actual autonomy, but have been largely unstudied. The author proposes a research agenda to explore customary independence more fully, and illustrates the utility of exploring customary independence through the example of court-packing, which court doctrine has left largely untouched, but which Congress has rejected as a matter of norm or custom.

Judges, Judicial independence, Judicial accountability, Judicial history, Court-packing, Judicial criticism

Abstract:
In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.

Judicial independence, judicial selection, Rule of law, judicial accountability, judicial elections, judicial politics

Abstract:
This essay addresses the question of whether the public really wants an independent judiciary. It is a question which implicates two discrete issues: What is an independent judiciary?; and does the public want one? The first issue seemingly invites a protracted disquisition on the meaning of judicial independence, but that would be unnecessarily digressive. For purposes here, it will suffice to isolate from the several facets of judicial independence that scholars have identified, those of central relevance to the public judicial independence debate. With those meanings in hand, I will then turn to the second part of the question and peel back the layers of the public’s views on judicial independence, like an onion, to reveal the nature and extent of the public’s ambivalence.

Judicial independence, judicial accountability, judges, rule of law, courts, institutional legitimacy

Abstract:
In this piece, which was written for a symposium on Bruce Springsteen and the law, I begin by setting the political stage with a brief description of the theoretical foundation for the rule of law and an independent judiciary, before summarizing recent developments that have eroded that foundation. I then correlate the phases of Mr. Springsteen’s work to three ideological movements spanning the twentieth century that have led us to our present state, in an effort to better understand the rising tide of opposition to judicial independence and the rule of law as it is traditionally conceived. I conclude with an analysis of Mr. Springsteen’s most recent work and find that it offers alternative solutions to the current conundrum, one of which holds considerable promise.

judicial independence, judicial accountability, judges, Rule of Law, Legal realism, courts, Formalism, institutional legitimacy, Bruce Springsteen

Abstract:
In this, essay I revisit Roscoe Pound’s 1906 address to the American Bar Association. I first contextualize the Pound speech with an eye toward its role in inaugurating a good government movement spanning the twentieth century that sought to regulate the judiciary with explicit reference to preserving public trust and confidence in the courts. Second, I describe more recent developments growing out of the civil liberties movement that have put the future of the good government movement in doubt, by calling into question the constitutionality of state code of judicial conduct provisions that seek to promote public confidence in the courts by prohibiting judicial speech and association that create the appearance of impropriety or partiality. Third, I discuss the disqualification regime that some reformers have proposed as an antidote, wherein judges are permitted - and perhaps even encouraged - to speak their minds freely, as long as they disqualify themselves later from hearing cases in which their prior statements call their impartiality into question. I conclude that for a disqualification regime to be effective, we must return to the roots of Roscoe Pound’s good government movement and the informal norms that have long discouraged judges from publicly venting their spleens on every hot legal topic of the day. If the judiciary succeeds in conserving the longstanding norms that encourage judges to watch what they say and with whom they associate (even if they have a “right” to do otherwise), to the end of promoting public confidence in the courts - then disqualification is a viable means to remedy isolated deviations from the norm.

Roscoe Pound, judicial disqualification, judicial recusal, judicial independence, rule of law, judicial speech, judicial accountability