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38 Judges J. 1 (1999)

handle is hein.journals/judgej38 and id is 1 raw text is: I AROL Independence and Accountability Election day is behind us for another year. A quadrennial sigh of relief could be heard from those of us in Colorado who were on the general election ballot for retention this year, and were happily retained by the voters, with approval per- centages ranging from the low fifties to the high eighties. Even in retention elections, judges sometimes confess to one another their anxieties about the uncertainty of the process; some even harbor irrational fears of rejection. Around election day, it is hard to forget that letter to the editor complaining about a particular decision of yours that went down hard in some quarters (especially when it seems that the other side forgot to write in praise of your wisdom and courage). Judicial reelection and retention are never assured. The general public tends to be uninformed about judicial candi- dates. Your own neighbors and friends confess that they often do not know what they are doing when they vote on most judges. Some tell you of a favorite judge whom they've met or read about or who performed their wedding service, and they assure you that they'll always vote for that one. Others profess not to vote at all on judges because they don't think they know enough to make an informed decision. One judge in a retention state reports that his aunt proudly proclaimed that she had helped his cause by voting NO on every judge on the ballot but him. It was her well-intentioned but mis- guided effort to deal with the complexities of a ballot contain- ing a bewildering array of head-to-head contests, judicial ref- erenda, and initiative questions. Another judge tells of a gruel- ing but successftl reelection campaign endured; but instead of feeling euphoria and satisfaction at a job well done, she has the lingering sense that despite all the anguish, effort, and money spent, and all the campaign promises and assurances, that neither the cause of justice nor public confidence in our justice system has been advanced in the process. In another state, one of the three in the country that bestows life tenure on its state judges, a judge is concerned because the bar association has begun polling lawyers and others with business before the courts to assess how well each judge is doing. In the final poll results, certain judges are sin- gled out for criticism due to complaints about their courtroom demeanor. This judge is embarrassed by the revelations, and wonies that they will diminish public confidence in the judiciary. Each of us wants to be independent so that we can do our jobs without the concerns of job security if we make an unpopular but legally tenable decision. We value the assur- ance of tenure as a predicate of judicial independence, signal- ing that we can be left alone, at least during the current term, to do our jobs fairly and impartially. But in our tripartite gov- ernment of checks and balances, we can never be free of the prerogatives of the competing branches of government that may intrude into what we regard as our part of the system. And we cannot forget that under the social contract, the peo- ple are the givers of all the powers of government-whether legislative, executive, or judicial-and that without some accountability to this source of our judicial power, we cannot expect to continue to exercise it. Each of us in our judgeships is an imperfect human instrument of the law, prone to mis- takes and susceptible to human passions. The limits and con- tours of our independence must be shaped by an appreciation of our fallibility, and this is what leads to the need for judicial accountability as a corollary of judicial independence. HOW MUCH ACCOUNTABILITY? Does accountability extend to judicial campaign fundrais- ing? How should we respond to a public concerned about judges and justices soliciting campaign contributions from lawyers and litigants? Any citizen excluded from a jury for having contributed to an entity involved in the litigation might well question the lack of similar automatic disqualification of the judge, if he or she solicited funds from a lawyer or party to the lawsuit. Concerns about public trust and confidence inspired recent programs on CBS's 60 Minutes and National Public Radio's Morning Edition. Council members of the Judicial Division interviewed for these broadcasts expressed their opinions. It is difficult to escape the implicit criticism of judicial campaign fundraising espoused in these programs; we are led to examine what account we must make to the people who, after all, sustain our branch and pay our compensation. AN INFORMED ELECTORATE Adherents of contested judicial elections (with their neces- sarily expensive campaigns) contend that such elections pro- vide a larger measure of accountability to the public than merit selection or life tenure. This may be a false perception. It was, after all, the genial corruption of the gaslight era of America's fin de siecle state courts with their politically cho- sen judges that led reformers like Learned Hand, Roscoe Pound, Theodore Roosevelt, and even William Howard Taft to argue for merit selection and tenure protection for state judges as an alternative to the involvement of political parties in the nomination and popular election of judges. Missouri plan selection and judicial tenure arose out of a corrupt elec- tive system, in the 1930s, and have since become the ABA's (continued on page 48) Frederic B. Rodgers is a judge in Golden, Colorado, and Chair of the Judicial Division. He also serves on the Colorado Bar Association Board of Governors, the faculty of the National Judicial College, and in the ABA House of Delegates.

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