As previously noted on this blog, among various criticisms, astute commentators also bemoan the unfettered license that comes with lifetime tenure of federal judges. See If Ringo Starr can work past 70, what’s wrong with lifetime federal judges?
These critics argue that lifetime appointments create such an out-sized independence that federal judges are unreservedly free to follow their consciences and as a consequence, are accountable to no one but themselves.
Further, they argue that discipline is so lax in a self-policing system that not long ago, in a Wall Street Journal Op-Ed by Nathan Koppel, After Judge Real, Asking: Can the System Deal With Incorrigible Judges?, Indiana University Law School Professor Charles Geyh answered the question with, “No, not where the behavior doesn’t rise to the level of impeachment.”
Statistics from the Administrative Office of the U.S. Courts suggest Professor Geyh is correct. Out of 2,108 annual complaints filed against federal judges from 2004 to 2007, 2,051 were dismissed. 21 were withdrawn. 36 resulted in “corrective action.” And in the entire history of the federal judiciary, only 13 judges have ever been impeached.
So in this context, it’s a good time to weigh in on what I call lifetime-tenure-light or what’s better known as judicial appointment via merit selection and accountability via retention elections. This year, 2 more states, Minnesota and Nevada, will decide on selection versus election. 
In November, the electorate in Nevada will have a say in deciding whether or not they want to forego open elections in lieu of a merit selection plan. If passed, the plan, which is based on a version of the so-called Missouri Plan, calls for a cross-section of citizens and the governor to first choose who sits on Nevada’s state courts. Public evaluation of these appointed judges follows as the second step. And third, retention elections of those appointed are held. Proponents argue that this approach will tame the money chase and force money and special interests out of partisan judicial elections.
Judicial appointment through merit selection is supposed to ensure a qualified judiciary. Proponents say appointment equals independence since judges can neutrally apply the law and not worry about special interests. And retention elections are supposed to assure accountability to the naked unwashed.
The arguments for selecting judges based on merit rather than through partisan political elections center on the two seemingly inconsistent, competing values of judicial independence and of accountability to the electorate.
By taking electioneering out of the judicial selection process, merit selection of judges “protects the impartiality of the judiciary without sacrificing accountability,” says former Supreme Court Justice Sandra Day O’Connor in a New York Times Op-Ed, May 21, 2010, see Take Justice Off the Ballot. (Underscoring the importance of the issue in Nevada as well as its own preferences, the Nevada State Bar is sponsoring a 3-hour free CLE seminar featuring the former supreme court justice September 21, 2010 in Las Vegas, Selecting Nevada’s Judges: Protecting Impartiality and Ensuring Accountability.)
But what accountability?
Beyond the fact that those who sit on appointment commissions are themselves, ‘special interests,’ with their own axes-to-grind, the more fundamental problem is that retention elections don’t come close to achieving the goal of judicial accountability.
In the history of judicial retention elections, save for a handful of prominent issue-driven instances like Chief Justice Rose Bird over her opposition to the death penalty in California, very few judges have actually lost a retention election. Indeed, in Missouri’s 70-year history there’s never been a supreme court or appellate court judge that has lost a retention election. Indeed one law review article has its author, Ohio State University political scientist Lawrence Baum, noting that “incumbent judges are most vulnerable to defeat in partisan elections and safest in retention elections.” See Judicial Elections and Judicial Independence: The Voter’s Perspective.
This is why I call the process nothing more than a ‘light’ version of lifetime tenure.
Perhaps because it undermines the accountability argument, it’s hard to find supporting research or empirical data validating the supposed accountability of retention elections. Indeed, the best-known study, by Larry Aspin and William Hall, while over a decade old, hardly makes the case for accountability through retention elections.
As noted in a 2001 law review article, of the 3,912 elections analyzed by Aspin and Hall from 1964 to 1994, approximately 1% were defeated.
Additionally, there’s the phenomenon of voter inattention and disinterest. Some call it “rolloff,” which is the abstention from voting. In the same Aspin and Hall study, which is cited in the law review article, on average, “more than one-third of the total voters rolled off and failed to vote for judges in all retention elections from 1964 through 1994.”
Possibly explaining voter disinterest is the fact that judges run unopposed in campaigns that are little publicized beyond voter guides or state supreme court websites. The absence of an opponent means there’s no one to raise issues of qualifications or record, save for those few issue-driven instances when the public’s attention is awakened. See, e.g. Justice loses over pay-raise furor and Federal Indictment Looms Over Pa. Superior Court Judge’s Retention Race.
The results are a less informed electorate and a judiciary increasingly out-of-touch with the people they serve.
The electorate is even less aware of judicial evaluation reports. For example, a 4 state study by Kevin Esterling and Kathleen Sampson, revealed that in Arizona and Utah, respectively, only some 30% and 50% of the voters reported any awareness of judicial evaluation reports.
The problems inherent in special interest financing of judicial campaigns have been widely noted by those against partisan judicial elections. Admittedly, it’s a problematic but repairable system, for example, via improved judicial disqualification and recusal rules post-Caperton v. A. T. Massey Coal Co..,and through a better effort at judicial campaign public financing.
Nevertheless, partisan judicial elections campaigns will remain imperfect and messy. See, for example, “Do not vote for my dad!” Another reason aspirants dislike judicial elections. But then that’s the nature of democracy. It’s imperfect and it’s messy.
To quote a sentiment attributed to Winston Churchill expressed in a June 2008 essay in the magazine Engage, “Until men and women who serve on the bench are angels, democracy will continue to be “the worst form of government, except for all those other forms that have been tried from time to time.””
 A good overview of the topic can also be had by reading Joseph Little’s essay on merit selection and retention of trial judges at Is merit selection and retention of trial judges a good idea? No.
 Larry Aspin & William K. Hall, Thirty Years of Judicial Retention Elections: An Update, 37 Soc. Sci. J. I., 3 (2000).
 Kevin M. Esterling & Kathleen M. Sampson, Judicial Retention Evaluation Programs in Four States: A Report with Recommendations 21 (1998).
 Further inquiry on this topic can be amply rewarded by visiting Judicial Disqualification & Recusal « The Judicial Ethics Forum. Also see James Sample’s Court Reform Enters the Post-Caperton Era at One-Click Download.
 Ed Haden & Conrad Anderson, IV, Professional Responsibility & Legal Education, Electing State Judges: Unpleasant, But Not Unconstitutional, Engage Volume 9, Issue 2, June 2008