Methods of judicial selection & their impact on judicial independence

Within the legal community judicial independence is understood, not as an intrinsic good or an end in itself, but as a means to achieve other ends.1 If judges are independent–if they are insulated from political and other controls that could undermine their impartial judgment–it is thought that judges will be better able to uphold the rule of law, preserve the separation of powers, and promote due process of law.2 Scholars, judges, and lawyers often acknowledge that judicial independence has institutional and decisional dimensions: institutional independence concerns the capacity of the judiciary as a separate branch of government to resist encroachments from the political branches and thereby preserve the separation of powers; decisional independence, in contrast, concerns the capacity of individual judges to decide cases without threats or intimidation that could interfere with their ability to uphold the rule of law.3

Properly understood then, judicial independence is circumscribed by the purposes it serves: decisional independence, for example, does not mean freedom from all external constraints, but only those constraints that interfere with a judge’s ability to uphold the rule of law. Indeed, some forms of independence from decisional constraint, such as the freedom to decide cases for the benefit of friends or in exchange for bribes, are antithetical to the rule-of-law values that judicial independence is .  .  .

Endnotes

• 1The ideas in this essay were first presented at the 2007 conference on The Debate over Judicial Elections and State Court Judicial Selection, convened by the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown University Law Center. A modified version of this essay appears in The Georgetown Journal of Legal Ethics 21 (4) (Fall 2008). Thanks to Bert Brandenburg, Barry Friedman, Steve Burbank, and Roy Schotland for their comments on an earlier draft of this essay and to Ted Brassfield for his research assistance.
• 2Stephen B. Burbank and Barry Friedman, “Reconsidering Judicial Independence,” in Judicial Independence at the Crossroads: An Interdisciplinary Approach, ed. Burbank and Friedman (Thousand Oaks, Calif.: Sage Publications, 2002), 9, 11–14.
• 3Charles Gardner Geyh, When Courts & Congress Collide: The Struggle for Control of America’s Judicial System (Ann Arbor: University of Michigan Press, 2006), 6–7.