Constitutionally Speaking, Does Retention Matter?

I. INTRODUCTION The short answer has to be no. But then that's only my opinion, which like vestigial organs and orifices unmentioned in polite company, everyone's got. Scholar or simpleton, 'As many men, so many minds;' every one his own way. (1) The forests chopped down for paper in service of decades of attenuated scholarship on judicial process and judicial selection are too numerous to count. Nevertheless, particularly when it comes to judicial elections--whether contested, uncontested, partisan, nonpartisan, or yes/no retention, the empirical data (2) is wanting. (3) What's left is mostly anecdotal or opinion-driven conjecture. Depending on the author's agenda, hypotheses are tied to thin reeds of statistically-manipulated support reminiscent of Mark Twain's remonstrance, There are three kinds of lies: lies, damned lies, and statistics. (4) So my views on the topic are these. Since judicial retention elections operate even more under-the-radar than open, contested judicial elections, it's eminently more difficult for voters to give them much notice. So state constitutionally speaking, since retention elections do such a great job of insulating judges from voters, (5) the question of whether or not retention elections have an effect on the capacity of state courts to enforce state constitutional rights and responsibilities is pretty much a non sequitur. Moreover, it's only when high profile hot-button issues like abortion, the death penalty, and most recently, same-sex marriage boil over that the public finds any sense of possible judicial overreaching. It's then that the otherwise under-informed plebs are sufficiently informed to consider running for their pitchforks and torches. But it's still useful to sardonically note the inconsistencies within the legal academy evidenced by Professor Larry Kramer's populist wisdom (6) epitomized by his so-called popular constitutionalism (7) on the one hand versus the view of voter as ignoramus on the other. (8) Ahoy polloi. (9) In the tension between judicial independence and judicial accountability, the legal guild wastes little time in subordinating the competing interests of the unwashed masses. To the boundless consternation of legal elites, the ignorant (10) multitudes favor direct contested elections of state judges over Missouri Plan nominating committee merit selection mechanisms and their placatory corollaries, yes/no judicial retention elections. (11) Indeed, despite the unfounded wishful thinking and ardent campaigning, (12) the latest effort went down to a predictable crushing defeat in Nevada. (13) Despite the painstaking statistical machinations of merit selection proponents, the public continues to resist. And in Nevada, it was the third time in a generation, giving the lie to the adage that the third time's the charm. (14) The results of the November 2010 ballot initiative for merit-based selection of judges failed when fifty-eight percent of Nevada voters rejected it. (15) Notwithstanding the collagen-injected lip service to the ideals of judicial accountability paid by lawyers, judges, bar associations, and legal academics, judicial independence always trumps accountability. As a matter of fact, merit selection where judges are appointed to an initial term by the governor from a list of nonpartisan commission nominated candidates was supposed to be the bridge less far between independence and accountability. (16) Freed from contested electioneering and the influence of campaign money, the initial appointment of judges was supposed to preserve and protect judicial independence. (17) And retention elections were supposed to provide the means for voters to hold outlier judges accountable. (18) But it's hard to dismiss the unvarnished wood in the cynical assertion offered by Indiana Law Professor Charles Gardner Geyh that [t]he presence of retention elections in merit selection systems can only be explained as a concession to the entrenched political necessity of preserving judicial elections in some form, so that merit selection proponents have an answer for detractors who oppose plans that 'take away our right to vote. …