by G. Alan Tarr. Stanford: Stanford University Press, 2012. 280pp. Cloth $85.00 ISBN 9780804760393. Paper $27.95. ISBN: 9780804760409.
Reviewed by Tara W. Stricko, Ph.D., Associate Professor, Department of Political Science, Kennesaw State University.
G. Alan Tarr provides a detailed, historically grounded account of the debate about judicial independence and accountability in the American states. He outlines broad political and legal arguments, provides an account of changes over time, and analyzes the effects of institutional configurations, utilizing brief summaries of contemporary literature. The book is a fairly dense historical overview, whose largely descriptive approach is valuable to those unfamiliar with the arguments. This work is timely given the increasing attention to state courts among scholars and the press, especially with regard to how politics and methods of judicial selection relate to democratic accountability in state court systems. The main contribution of this book is its comprehensive coverage of the topic nicely packaged in a well-organized framework.
The volume opens by arguing that there are two camps, identified as “bashers” and “defenders,” who are concerned with judicial independence and accountability for different reasons. Tarr posits that “bashers” are primarily concerned with internal threats – problems caused by judges legislating from the bench and ignoring the rule of law. He argues that “defenders” are primarily concerned with external threats – challenges to the courts posed by other actors such as governors, state legislatures, or voters. Although the former are most often politically conservative and the latter are most often politically liberal in contemporary terms, Tarr notes that the partisan composition of each camp has changed dramatically from the Progressive Era until now.
Chapter one starts with a discussion of early methods of state judicial appointment and how they were influenced by the colonial experience. Naturally, given the United States’ history and distrust of executive power, selection procedures were initially dominated by legislative appointment because the state legislatures were thought to be closer to the will of the people. This emphasis on popular control via the legislature resulted in fairly easy sanction and removal procedures against judges in many states despite formal guarantees of tenure during judicial “good behavior.” Initially the concern was protecting judges from undue gubernatorial influence while still allowing for widespread popular control.
The second chapter traces the move from legislative appointment to judicial elections.[*540] This shift, largely in the middle of the 19th century, follows along with the historical progression of political accountability and expanded voting rights more generally. Developments included limits on judicial tenure and the move to judicial elections. Popular selection of judges unsurprisingly coincides with the trend towards expanded suffrage for citizens. According to Tarr these changes reflected distrust of political elites more than trust in the common man. However these changes underscore the dynamic nature of judicial selection systems in the United States, a point which is often overlooked in the vast of the “defenders” arguments.
Chapter three rounds out the historically-based chapters with the move to merit-based selection procedures. From the 1960s through the 1980s many states enacted merit systems which were long favored by legal practitioners. Despite widespread adoption of merit systems over that twenty year period, the most recent changes have resulted in a higher percentage of states choosing electoral systems with a corresponding trend towards increasingly competitive, expensive, and occasionally negative electoral races. The influence of money, campaign advertising, interest and professional groups, and its implications for public policy and public perception have been well-studied. The basher and defender arguments in contemporary times are further explored in chapter five.
The fourth chapter builds on the previous chapter by discussing contemporary notions of judicial independence and accountability with current selection procedures. A careful and detailed recounting of the costs of judicial elections, such as voter qualifications, financial costs, and adverse effects on the judiciary is included. A careful recounting of detailed methods of accountability mechanisms is included. Chapter five assesses “basher” and “defender” arguments and evaluates their utility given the scope of judicial elections. The discussion is thoughtful, considered, and even-handed but could leave some readers wanting more. The primarily qualitative nature of the book combined with careful evaluation of both sides is at once a strength and a weakness of the book. It leaves one with many thoughts but few clear answers.
The final chapter addresses several different methods to promote independence and accountability within judicial election systems. Options discussed include: clearer standards concerning disqualification and recusal, public financing of judicial elections, and use of a single non-renewable term for state judges. Tarr then delves into a theory of popular constitutionalism designed to alleviate some of the tension between independence and accountability. Unfortunately there are likely to be significant political or legal obstacles to the implementation of these reforms.
This book is well-written, well-researched, and well-organized. The logical, historically documented progression of changes in judicial selection procedures in the American states and their impact on judicial independence and accountability is impressive. However the book is clearly designed for a rather limited audience. That said it is a wonderful overview for scholars interested in selection of states judges, and can also be used as a resource for those interested in historical and theoretical arguments used by “bashers” and “defenders” for or against judicial selection systems. It also provides a well-rounded overview of [*541] different aspects of the literature for those interested in specific areas like campaign speech and finances, competitive elections, etc. Without Fear or Favor is quite likely to find a place on the bookshelves of students of state judicial institutions, faculty and graduate students alike.
Copyright 2012 by the author, Tara W. Stricko.