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Layne S. Keele

Abstract

This Article attempts to reframe the age-old judicial election arguments into a discussion about the importance of the retention decision, in order to draw out the areas of true disagreement in the judicial independence/judicial accountability debate. I argue that the core difficulties in balancing the desire for judicial independence with the desire for judicial accountability stem primarily from the judicial retention decision, regardless of whether retention is obtained by some form of reelection or through a form of reappointment. I then propose a two-term system for putting judges on state high courts, in which (1) high court judges sit for an initial term of relatively short duration (for example, five or six years); and (2) following the initial term, those judges are eligible for a longer, final term (for example, ten or twelve years), after which the judge would be ineligible for further retention. I argue that this proposed system would better balance judicial accountability and judicial independence than the systems currently in place. Part II of this Article briefly surveys the various systems currently in place for selection and retention of state high court judges. Part III examines the most common and enduring arguments raised in the judicial elections debate—arguments related to the dueling instrumental goods of independence and accountability—to distinguish those arguments directed toward judicial selection from those arguments directed toward judicial retention. Building on Part III, Part IV will identify retention-related considerations other than elections that play an important role in a judge’s independence and accountability. Specifically, Part IV will suggest that term length and term limits are as important to the accountability/independence dynamic as the mechanism used to retain judges and can be used to increase desirable independence in those jurisdictions where judges periodically stand for re-election. Finally, Part V will offer a specific proposal for using term length and tenure limits to enhance independence even where elections are used to retain judges.

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