Vol. 29 No. 8 (September 2019) pp. 94-95

WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES, by Charles Gardner Geyh. New York: Oxford University Press, 2019. 195pp. Hardcover $29.95. ISBN: 9780190887148

Reviewed by Michael K. Romano, Department of Political Science, Shenandoah University. Email: mromano@su.edu.

One of the most contentious debates between scholars of state courts and legal academics has been examining which institutions of judicial selection and retention better elevate accountability over independence (and vice versa). While other debates find satisfaction in the fact that researchers on both sides can agree their opposition makes some valid points, the conflict between accountability-based and independence-based proponents has normative connotations regarding the nature of democratic norms, and neither side has seemed willing to give ground to the other’s ideas. Charles Geyh’s WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT JUDGES attempts to add to this debate by calling a truce. Geyh replaces rigid orthodoxy with introspection to draw new attention to the debate over how to design judicial institutions; his focus on the pros and cons of both sides of the debate is valuable as it requires the reader to engage rather than isolate themselves in their own ideological bubble. The work’s significance is not in new findings or sophisticated empirical techniques, but rather in how it draws attention to deeper theoretical and methodological questions concerning how we examine, and indeed how we understand, how courts operate in the United States.

The book posits that the accountability/independence debate has proven to be less than useful in generating an institutional design that can find balance between countervailing claims for legitimacy This thesis is important for several reasons, not the least of which is a signal from legal reformers like Geyh whom have written extensively about “Why Judicial Elections Stink” (2003). The premise of the argument presented in WHO IS TO JUDGE? is fairly simple: if scholars on both sides take a step back from the debate and look carefully, we will find that we have all been wrong in some ways, and that being “engagingly pugnacious but wrong is no virtue” (p. ix). What Geyh tries to do, through in-depth research into the histories of institutional change as well as engagement with countless years of empirical research, is to find the line between what we currently have evidence to support and disprove about the stigma of judicial elections, and to consider a new way forward for institutional designers concerned about the judiciary. Enlisting advice from some of Law and Court’s foremost scholars on state courts, the book plays out like a tennis match between arguments for and against judicial elections in an attempt to find balance. Additionally, the book includes a concise but rich history of the normative rationales behind why states diverged along different paths when designing state judiciaries.

In some ways, the main benefit of the book – much like his previous writings about how judicial elections “stink” – is that Geyh provides empirical and legal scholars alike new areas to investigate and analyze. The book is devoted to discussions of how our cognitive biases can cloud our ability to see the evidence for what it is: the legal field was wrong for assuming with no evidence that judicial elections would lead to the outright degradation of the courts, and political scientists were wrong for trying to artificially inflate the importance of their findings when they were based on limited data. To provide support, Geyh wades through decades of scholarship in an attempt to analyze where the debate has been and where it is headed. The final product for Geyh is a new set of “incremental reforms” that the legal world will likely consider worthwhile to implement, and scholars in judicial behavior will likely treat as testable hypotheses going forward. [*95]

Taken to heart, the argument that we should move past the initial debate over accountability and independence is one likely to resonate with scholars of judicial politics moving forward. Ironically, though, the book will likely be read and debated most vigorously by law professors rather than political scientists. While Geyh has in every way engaged with our findings and consulted with some of our wisest minds in state courts, political scientists may still feel outside the scope of Geyh’s audience. The arguments are thought provoking, but Geyh struggles to completely remove his own value-laden assumptions about how courts ought to operate. As a result, Geyh bounces between making lucid, clear criticisms of the debate between appointed and elected judges, to questionable declarations steeped in countervailing claims for judicial legitimacy. In reading the text, I often felt that Geyh would use the evidence in front of him from countless years of research to show that the original beliefs of legal scholars were unfounded, only to then move the goal post for empirical research in order to save legal theories from being discarded in future research.

Once more, and perhaps to Geyh’s benefit, he does not directly engage in the meaning of the terms “accountability” and “independence” beyond the trivialities of what proponents say they mean and critics argue they fail at providing. An important point for the book is to display how these terms have shifted in meaning since they were first used to describe courts in the United States. A recurring question left vague by Geyh’s approach to examining the topic of judicial selection centers on the fact that one reason the debate over selection and retention rages between scholars is perhaps because there is disagreement over the simple meaning of the terms under evaluation. Throughout this history, the book shows, the terms have changed so often that they become almost meaningless. When it first came into fashion, the desire for an “independent judiciary” during the early 19th century meant a desire for courts to break away from the cronyism of legislatures and the executive branch. Because of this, reformers pushed for a more direct role of the people, thus initiating the trend toward judicial elections. As courts began to cement themselves, this same draw toward “accountable independence” was met with consternation over public control over what should be an unbiased institution.

Rather than disregard the terms, however, Geyh proposes we try to find a new balance based on their contemporary meanings in an effort to fortify the institutional legitimacy of the courts and protect them from the increasingly polarizing political world. In the end, the task Geyh sets forth for himself is often his own undoing. While attempting to look at the debate with a fresh perspective, he sometimes falls back into old normative pitches without recognizing the rich depth of complexity underlying the fundamental premise of his argument: we are all wrong, but wrong in only slightly different ways. The book takes great pains to talk about the historical context for institutional reforms in state judiciaries but seems to forget the lessons of the past as Geyh looks toward to the future with a new set of institutional reforms to replace those he has admitted were wrong in “Why Judicial Elections Stink” (2003). The book may not propose a unifying theory, but it is at least the start of a new conversation. It will likely not fully bridge the divide between proponents of accountability and independence-based judiciaries, but Geyh has provided a roadmap and fresh insight for those who wish to engage in the debate going forward.

Geyh, Charles G. (2003). “Why Judicial Elections Stink” OHIO STATE LAW JOURNAL, 64: 43-79.

© Copyright 2019 by author, Michael K. Romano.