22 Notre Dame J.L. Ethics & Pub. Pol'y 451 (2008)
Accountability before the Fact

handle is hein.journals/ndlep22 and id is 455 raw text is: ACCOUNTABILITY BEFORE THE FACTt

MICHAEL R. DIMINO, SR.*
Too often the debate concerning judicial-selection methods
is framed as a balance between independence and accounta-
bility, without a serious attempt to explain what is meant by
those terms. As a result, the opposing sides in the debate focus
on anecdotes illustrating the need to protect either indepen-
dence or accountability, and rarely ask whether the worst of both
worlds can be avoided by developing a system that preserves both
an opportunity for the people to influence the policy choices
made by courts and judicial freedom to decide individual cases
based on the law when the result is unpopular.
This Essay argues that such a balance is possible if we aban-
don the notion that independence requires that there be no
direct role for the public in judicial selection and that accounta-
bility requires that the public be able to express its disagreement
with judicial rulings by voting the offending judges out of office.
The balance suggested here has two elements.
First, judicial terms of office should be long and non-renew-
able, such that there are neither reelections nor reappointments.
Where judges know that their ability to stay in office depends on
how politicians or voters view their decisions, there is the poten-
tial for decisions to be made on the basis of those political calcu-
lations rather than on the merits.
Second, the initial selection of judges should be by election
for high courts and by appointment for lower courts.' Public
t On March 12, 2008, the Notre Dame Journal of Law, Ethics & Public Policy
hosted a panel discussion entitled, 'Judicial Accountability: Experiments in the
States. Professor Dimino's remarks have been revised for publication.
* Associate Professor, Widener University School of Law. I wish to thank
Lauren Galgano, Jessica Burke, and the rest of the Notre Dame Journal of Law,
Ethics & Public Policy for the invitation to participate in this symposium; Charlie
Geyh for his comments on an earlier draft; and Keely Espinar for her research
assistance.
1. Intermediate appellate courts present a quandary, for they enjoy some
of the discretion that states' highest courts have, and thus make policy in those
areas not decided by controlling precedent. On the other hand, because they
are bound by the law established by the highest courts and because their dock-
ets are mandatory, more of their decisions will be dictated by settled law than is
the case for the highest courts. My purpose here is not to decide which side of
the line mid-level courts fall on, but rather to suggest the questions relevant to
such a determination by illustrating the reasons that elections are appropriate

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