June 26, 2012
The following article by Jeri Zeder appears in the Summer 2012 issue of the Harvard Law Bulletin.
When Assistant Professor Jed Handelsman Shugerman was a law student at Yale, former Tennessee Supreme Court Justice Penny White spoke as a guest in one of his classes. White was a pro-death penalty Democrat who had voted in one case to overturn a death sentence. When she ran to keep her seat, conservative groups rallied against her. She ultimately lost. “Her story raised basic questions for me as a law student about the relationship between law and politics,” Shugerman says now. His interest in the subject couldn’t be more relevant. Today, about 90 percent of state judges must run for office, and the elections have become increasingly expensive and nasty. Shugerman provides historical perspective on judicial elections and other methods of judicial selection in his new book, “The People’s Courts: Pursuing Judicial Independence in America” (Harvard, 2012).
Seven years in the making, “The People’s Courts” sent Shugerman digging through archives around the country. His book is a thorough account of the turning points, political and economic forces, corrupt power struggles, and intellectual thought that have shaped how Americans choose their state judges, from Colonial times to the present.
“I began the book feeling horrified by American judicial elections,” Shugerman says. When his research revealed that a significant impetus behind them was to correct for the corruption and partisanship of judicial appointments, he saw that judicial elections had a good-faith logic in their 19th-century context. From the republic’s earliest days, Shugerman notes, the challenge of judicial selection has been to balance judicial accountability, which demands that judges bend to popular and political pressures, and judicial independence, which demands judicial allegiance to the rule of law. As he mined the historical record, he found that judicial election advocates vied for popular support for their cause by framing it primarily in terms of judicial independence.
This was a theme that was repeated throughout American history, Shugerman found, whether the method of judicial selection being advocated was elections or another approach. “That judges should be separate from politics, that judges should be doing something other than voting with public opinion or voting because of partisanship—that core idea of judicial independence animates the story all the way through,” he says. “It was a real surprise to me. I thought I would see judicial accountability as the rallying cry of reformers, in part because I think, over the last couple of years, we’ve seen more demand for judicial accountability.” At the same time, he found that the economic interests of various groups and the coalitions they created were also a driving force behind judicial selection reform movements throughout American history.
Shugerman discovered that at first the plan to create a more independent judiciary through popular elections worked. The first generation of elected judges in the early 19th century exercised the power of judicial review far more often than their predecessors did. Perhaps ironically, these democratically elected judges were also the first to criticize democratic excesses and to argue from a countermajoritarian perspective.
Shugerman’s legal-historian colleagues emphasize the groundbreaking nature of his explorations into judicial elections. But his book is not limited to elections. “The People’s Courts” demonstrates that, over 250 years, various judicial selection methods have arisen; succumbed to inevitable corruption, partisanship or economic pressures; and fallen, in largely cyclical fashion.
Of all the methods he looks at, Shugerman claims that merit selection, which involves vetting by a panel of professionals and executive appointment to a first term, followed by retention elections, has yielded the most judicial independence. It is currently employed in about 20 states. But he warns that it, too, may be adversely affected by the excessive campaign spending that preceded and may now be accelerated indirectly by Citizens United.
Shugerman, who joined the HLS faculty in 2005, holds a Ph.D. in history as well as a J.D. (His book grew from his dissertation, which received the Cromwell Prize of the American Society for Legal History in 2009.) He calls Harvard “a hotbed for legal history” and is grateful to colleagues whose comments on his work helped him refine his arguments. For his next project, he is taking on the history of America’s federal prosecutors, particularly how the tension between partisanship and professional independence has played out over time. “That project,” he says, “might be called ‘The People’s Prosecutors.’”