Reconciling the Judicial Ideal and the Democratic Impulse in Judicial Retention Elections

It is hardly novel to suggest that judicial elections, including retention elections, illustrate profound and irreconcilable tensions in the American governmental scheme. The guiding political philosophy of liberal democracy dictates that judges be insulated from popular will and therefore remain free to adhere to the law, regardless of how unpopular such adherence may be. Complete independence would permit judges to be reckless in their use of the law as a tool of power. Complete accountability would render the rule of law, and the protections it affords to political minorities and others who lack political power, nonexistent.

This elusive ideal of "judicial independence" has been overwhelmingly endorsed by American citizens who consistently report that judges should be faithful to the law and should remain "above politics." Yet, even as we recognize that the judicial branch serves a distinct function within a democratic governmental system, we also fear any unchecked power, including judicial power.