Political accountability

Indirect political accountability comes in many forms. One perhaps obvious comment applies to many, if not all: the less indirect the political accountability is—and even if indirect, the stronger it is—the more controversial will be its exer­cise.

The preceding paragraph suggests an additional point that should be made explicit. System designers seek an acceptable balance between independence and account­ability in judicial systems that are quite complex.

1. Budget control and judicial salaries

Indirect political accountability occurs when political officials exercise substantial control over judicial budgets, including salaries. Not surprisingly, judges typically seek to establish as large a degree of fiscal autonomy as they can. They object to lodging responsibility for judicial budgets in a political ministry, for example, rather than in the judicial hierarchy itself. An international norm regarding judicial salary protections may be emerging: judicial salaries may be reduced only as part of a more broadly applicable austerity program, whereas reductions applicable solely to judges are inconsistent with judicial independence.^[244] Or, to put it in the terms I have been using, indirect political accountability by means of salary adjustments targeted at the judiciary are too strong, posing too great a risk that they will be used to create more political accountability than is compatible with the rule of law.

2. Judicial appointment

Assuming that judges will be independent and relatively unaccountable during their tenure, system-designers can promote indirect political accountability at the front end, that is, at the point of selection (and, perhaps, promotion). There are many variables subject to manipulation.

As with judicial salary adjustments, there may be an emerging norm of constitutional design here—convergence on the judgment that judges on apex courts should serve non-renewable terms lasting somewhere between nine and fourteen years.¹¹

The mechanisms of appointment, on the one hand, and of discipline and removal, on the other, provide useful illustrations of indirect political accountability for courts as institutions and for judges as individuals respectively. Again at the risk of introducing some distortion, I suggest something like a continuum of mechanisms for achieving indirect political accountability through appointments. At one end is the system, typical in the state judicial systems within the United States, of popular election of judges.¹² Variations exist within this category, of course: judicial terms can be short or long; the elections can be partisan or nominally nonpartisan; the issue in an election might be whether a specific candidate should be retained as a judge, rather than which of several candidates should be elected. Each variant provides a different balance between political accountability and independence. Further, because the structure of the judiciary is complex and multidimensional, the metaphor of a single dimension might be inapt: a system that has judicial elections for quite long terms might have less popular accountability than a system of appointments by political figures for renewable, relatively short terms.¹³

a.

Judicial elections provide today's people with a means of holding individual judges accountable reasonably directly—and, to the extent that other judges take the results of judicial elections as providing information that they use in reaching their own decisions, also promote the accountability of courts as institutions. Between elections, of course, judges are not accountable for specific decisions, but in this they do not differ from purely political representatives during their terms.¹⁴ Yet, some additional qualifications need to be mentioned. Political leaders may play a large role in selecting judges as candidates. In the United States, typically a judge in a retention election holds her seat because of a previous appointment by a necessarily the public. And, for obvious reasons, these effects may differ depending on the age at which judges take their positions on apex courts, and whether they are subject to rules requiring or norms encouraging retirement at a specific age or restrictions on post-service employment.

¹¹ The precise numbers may depend on other design variables, such as the size of the apex court. System designers appear to try to calibrate the length of terms with size, to ensure a regular replacement process: courts with nine members have nine-year terms, allowing—if all goes well—one replacement a year; courts with seven members have fourteen-year terms. (For obvious reasons, system designers prefer that apex courts have an odd number of members, and preferably a relatively small number so that the entire court can sit on particularly controversial cases, thereby eliminating the risk that a decision will be rendered by a panel whose composition is skewed.)

¹² There are scattered examples of judicial elections elsewhere in the world. The judges of the Japanese Supreme Court face retention elections every ten years. Constitution of Japan, art. 79, 5 2, available at

¹³ I owe the point and the example to Vicki Jackson.

¹⁴ C/Jean-Jacques Rousseau, The Social Contract (Wordsworths Classics, Chatham, 1998), bk 3, ch 15 (‘The people of England thinks itself free; but it is free only during the parliamentary elections. As soon as they are over, slavery overtakes them, and they are nothing’.). governor. And, in contested elections and even in nominally nonpartisan ones, political leaders may have a strong influence in determining whose names appear on the ballot.^[246] Perhaps more important, and introducing an idea that will play a more prominent role as we proceed, the norms voters believe appropriate in judicial elections may be distinctive. In voting for legislators, I believe, voters typically focus almost exclusively on the policy positions candidates take or on how those who are seeking re-election have performed as legislators. Voting for judges may be different because pure policy considerations, while never absent, may be supple­mented by a sense among voters that they should also consider the extent to which a judge or candidate has or is likely to conform to professional norms, including compliance with ‘the law.'

b. Purely politicalprocesses and the role of norms

The next category includes systems in which judicial appointments are made by elected officials, for example in the national courts of the United States, by the President with the advice and consent of the Senate, and in Canada and Australia by the Prime Minister acting alone. It is commonplace in studies of US national judicial appointments that presidents often make rough predictions of how prospective nominees might cast their votes if appointed, in selecting who among the list should be nominated. Predictions may be inaccurate even in the short run, and presidents understandably are more likely to focus on the issues of more immediate concern than on issues that might arise over the often long tenure of the judge. Predictions about future decisions are rarely the sole consideration presidents have in mind when selecting nominees.

What might be called professional norms play some role in the US process. References to a nominee's professional qualifications and to her character and judi­cial temperament recur, although my judgment is that these references have become boiler-plate over the past few decades. Strikingly, though, the appointment processes in Canada and Australia, while seemingly unconstrained because appointments lie in the hands of the Prime Minister alone, might well be more constrained—and therefore achieve less indirect political accountability. The reason is that appoint­ments to the apex courts in both nations appear to be strongly constrained by professional norms. For example, Helen Irving, an Australian academic, described a call in Australia for the appointment of a ‘capital-C Conservative’ a ‘barely disguised attack on the Court’s “character.” ’^[248] As a matter of near-constitutional convention, geographic considerations matter in Canada and, to a lesser extent, in Australia. More importantly, for each vacancy there will be only a handful of prospective nominees thought in the relevant circles to be qualified for appointment. In both nations the subset of lawyers and sitting judges who are generally thought to be qualified for judicial appointment is quite small, and the potentially appointable women and men are generally well known within the profession. The judgment that a person is qualified for the highest courts tends to rest on the political classes’ judgment that the person has performed well, according to professional rather than political norms, in a person’s prior position as a judge or high-level practising lawyer. There is no real ‘system’ in this, only a set of norms that might amount to a convention, and, like all conventions, it has the potential for displacement by simple departure from prior practice.

The important role professional norms play in appointments processes that are nominally purely political raises new questions which I can do no more than mention here. Professional norms are rooted in the profession itself. Roughly, leaders of the bar make judgments about whether a person’s views are ‘sound’ or ‘unsound’. Precisely what will seem ‘sound’ or ‘unsound’ will of course vary as the profession changes.^[249] The precise relation between changes in the profession and changes in the norms relevant to judicial selection deserves further exploration. For example, the American Bar Association (ABA), the organized national bar in the United States,^[250] used to be politically conservative and has now become rela­tively more liberal. Prior to the 1990s, presidents consulted with the ABA prior to selecting nominees for national judicial office, and deferred substantially though not completely to the ABA’s judgments about potential nominees’ profes­sional qualifications. As the ABA became more liberal, Republican presidents and their advisers became increasingly uncomfortable with giving the organized bar this role, and the administration of George W Bush abandoned the practice. President Obama revived it.

Again roughly, there will almost certainly be some loose correlation between how society generally changes and how the legal profession changes. The change in the ABA’s political orientation, for example, almost certainly resulted from a dramatic increase in the number of women lawyers. The role of professional norms in the appointment process thereby becomes a mechanism for an attenuated form of indirect political responsibility.

c. Judicial nominating commissions

A final set of appointment mechanisms may attenuate political responsibility even more. These mechanisms are judicial nominating commissions, which take various forms but whose general characteristic is limiting the role elected officials play in selecting judges. A nominating commission’s composition matters a great deal. Typically, such commissions include some elected officials, some representatives of the bar, some members of the public, and—importantly—some judges.^[251] Norms matter a great deal in nominating commissions’ deliberations, and here too professional norms are likely to dominate.^[252] Judges may vote as a bloc, the bar’s representatives are likely to take professional norms to be their primary concern, and the representa­tives of the public may be co-opted by the professionals into accepting professional norms.^[253] Sometimes judges can take control of the selection process either informally, by dominating commission deliberations, or formally through the commission’s composition, or, unusually, through constitutional interpretations that give the judiciary a controlling role.^[254] Further, nominating commissions may be charged with specific tasks, such as seeking to achieve diversity on the bench, with diversity measured in demographic terms rather than ideological ones. To the extent that commissions are charged to take some things into account and there is silence about others such as ideology or ‘judicial philosophy’, the latter concerns are likely to be pushed down on the commission’s agenda. Often the nominating commis­sion presents a short list of candidates for appointment to a political authority such as the Prime Minister. The list constrains the political authority’s choice, though the commission might anticipate that authority’s reaction to the list and take its anticipated reaction (meaning, its policy preferences) into account along with professional norms in developing the list.

d. Conclusion

Political accountability is unlikely to disappear as mechanisms move from popular elections to judicial nominating commissions dominated by judges, but it seems quite likely that it will weaken. Which mechanism achieves the appropriate balance between accountability and independence is a normative question that different liberal democracies may properly resolve differently.

3. Judicial discipline and removal

Appointment mechanisms affect the indirect political accountability of courts as institutions. Mechanisms ofjudicial discipline and removal typically deal with judges as individuals.^[255] In doing so, they raise pointed questions about the appropriate bal­ance between accountability and independence.^[256] A judge would be maximally and directly political accountable were she to know that she could be removed from her position relatively easily, simply because political actors disagreed with her rulings on the merits of cases that came before her. Such a judge would also be minimally independent. Emerging international norms of constitutional design strongly disapprove of removal mechanisms of this sort.^[257]

The difficulty lies in designing mechanisms of discipline and removal that are not readily subject to ‘capture’ for these mean purposes; that is, mechanisms whose operators will find it difficult to use some pretext for discipline or removal actu­ally predicated on disagreement with rulings on the merits. There are two generic solutions. The first is to specify relatively precise grounds for discipline or removal; the second is to place the decision within the control of the judiciary itself.

The United States has chosen the first mechanism for removal. A judge on the national courts can be removed from office—‘impeachment and conviction’ is the appropriate term, generally reduced to ‘impeached’—if he fails to display ‘good behavior’, which has come to mean only if he is guilty of a serious criminal offence.^[258] This has led to an administrative problem, posed by judges who become disabled, typically mentally, and refuse to acknowledge their disability. The first national judge removed from office was indeed removed for mental disability,^[259] but the next case raised questions about the suitability of that mechanism for dis­ability. In 1804, the House of Representatives sought the removal of Justice Samuel Chase, charging him with having made several rulings that the House believed to reach grossly erroneous results for merely political reasons, and with lacking an appropriate judicial temperament. The Senate narrowly refused to remove Chase, establishing a convention that the merits of a judge's rulings should play no part in the decision to remove him from office. It was the combination of the charge of failures of judicial temperament with charges of erroneous rulings that created the enduring difficulty. The Chase impeachment showed that removal for alleged disability might be a pretext for removal based on disagreement with rulings. It took more than a century, but eventually the United States solved the problem by placing authority to impose discipline for injudicious behavior, and effectively to remove a disabled but recalcitrant judge, in the hands of the judiciary itself.^[260]

These two solutions—narrow criteria for discipline and removal administered outside or inside the judiciary, and broader criteria administered within the judici­ary—are widely used. Neither is particularly well-designed to achieve political accountability, which may well be normatively desirable. Focusing on individual judges, removal and discipline proceedings pose a greater threat to judicial inde- pendence—or, obversely, make direct political accountability more potent—than the indirect political accountability associated with appointment processes.

4. Political accountability through the threat of noncompliance

In the end, judges must call upon the state's coercive apparatus to ensure that their decisions are complied with. The strength of traditions of compliance varies widely. In well-functioning liberal democracies, traditions of compliance are typi­cally quite strong, which may mean only that the nation's people have had enough experience to have concluded that the benefits of ‘voluntary' compliance are worth it even in cases where they as individuals happen to have lost. Sometimes in such democracies and perhaps more often in nations with less experience in the practices of liberal democracy, noncompliance occurs merely because the state's coercive apparatus is itself too weak. Officials would ensure compliance if they could, but lack the capacity to do so. Sometimes, though, those in charge of the coercive apparatus could deploy it to ensure compliance, but choose not to do so because they disagree with a judge's decision.

More common than wilful noncompliance are evasion and erosion over time, which occur even in well-established liberal democracies when judges issue rulings that are deeply unpopular; which is to say, when judges act too independently.^[261] Officials will claim that their practices are distinguishable from the ones the courts condemned, for example. Sometimes evasion is so widespread that even those who agree with the courts' decisions refrain from challenging the evasions because of the social stigma attached to doing so. As evasion persists, the underlying decision can lose whatever normative hold it initially had.

Judges may describe wilful noncompliance by officials as lawlessness, and many would agree that at the least there is a strong normative presumption against the propriety of wilful official noncompliance. Yet, norms are one thing; practices another. Noncompliance where compliance is possible is another mechanism of judicial accountability. It can operate after the event, of course, in cases of actual noncompliance. In addition, the mere possibility of noncompliance may have ex ante effects on the decisions judges make, though, as I have suggested, we need additional explication of the psychological processes that lead judges to alter the conclusions they would otherwise reach because they anticipate noncompliance, a behavior they will almost necessarily think normatively unjustified.

C.