Comment: Judicial Accountability and Discipline

Abstract

Professor Steven Lubet of Northwestern University School of Law correctly observes that the primary point of friction between judicial independence and accountability is at the state level. Federal judges are not immune from accountability concerns, but those concerns are mitigated by the fact that federal judges serve with life tenure and can be removed from office only by impeachment. We judges in state courts deal with accountability issues more frequently and are more sensitive to them because we are only one election cycle away from unemployment. The judicial disciplinary process and the specter of politically motivated misconduct allegations against state judges poses another important challenge to judicial independence. I view the issue of judicial independence and accountability on three interdependent levels: political accountability, decisional accountability, and behavioral accountability. Political accountability includes selection, tenure, and the extent to which judges are accountable to the other branches of government for appropriations, definition of jurisdiction, and other issues related to the terms and conditions of our service in the judiciary. Decisional accountability concerns the manner in which judges are held accountable for rulings and decisions. While this principally takes place through appellate review, it also includes academic criticism of judicial actions. However, I question the extent to which most state court judges are concerned about academic reaction to their work. Most voters, including the lawyers who vote, do not read law review articles and case notes. I do not know of any judicial election campaigns that have featured scholarly reviews of a judge's decisions. Thus, apart from appellate review, decisional accountability occurs mainly in two sensitive places: legislative power to appropriate funding for the courts being manipulated in response to unpopular decisions and rulings, and media criticism of judicial decisions and rulings by politicians and at the grassroots level.