Judicial Retention Elections - Are They Serving Their Intended Purpose?

• NCJ Number: 73431
• Journal: Judicature Volume: 64 Issue: 5 Dated: (November 1980) Pages: 210-233
• Author(s): S B Carbon
• Date Published: 1980
• Length: 24 pages
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America
• Note: Adapted from a forthcoming monograph 'Judicial Retention Elections in the United States'

Annotation

The history of the idea of judicial retention elections is traced and retention election results are used to show that the principal purposes of such reform measures have been preserved since retention elections for judges began in 1942.

Abstract

The historical examination of judicial retention elections reveals that the founders of the concept endowed it with two principal purposes: (1) retention of judges for lengthy terms once they had been chosen on the basis of merit, and (2) accommodation of populists who insisted on a mechanism to hold judges accountable to the people. Moreover, retention elections have always been linked to the nominating commission method of selection, whereby candidates are recommended on the basis of professional merit. A review of arguments against the idea of judicial retention elections lists the advantages of insulating judges from popular control. It is also argued that low voter turnout in retention elections is not an adverse result because significant voter participation is unnecessary if the judge was initially chosen on the basis of merit. In addition, political partisanship in judicial retention elections is considered unnecessary in the face of a commendable judicial record; and objections about retention elections promoting life tenure are countered by the observation that the retention election concept is designed to ensure lengthy tenure for competent persons. An examination of why 33 judges have not been retained in the 45-year history of retention elections reveals 8 principal reasons why judges were opposed for retention. In the order of their frequency, these reasons are lack of professional competence, judicial philosophy, judicial conduct, judicial temperament, controversial decisions, criminal activity, public scandals, and local politics. An analysis of the impact of bar polls, campaign activity, and editorial comment on retention elections reveals that two or more of these factors contributed to the 33 judges' defeat. It is concluded that the original objectives of retention elections have been achieved and that retention elections are useful for holding judges accountable, particularly in urban areas. Data tables and 65 footnotes are provided.