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
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
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.
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.
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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