that judicial independence is among the most valuable institutional resources of
courts. For courts to fulWll their role as impartial arbiters of disputes—and as veto-
players—they must be insulated to some degree from ordinary political pressures.
When judiciaries lose their independence, they may lose their eVectiveness. 8
A brittle tension exists between judicial independence and democratic
accountability. In democratic societies, policy-making institutions are typically
held accountable through the political process. 9 To the extent that courts are
recognized as policy-makers, then expectations of accountability naturally emerge.
Where few mechanisms exist to hold judges accountable (as in the federal courts in
the United States, where all judges hold lifetime appointments), courts are vulner-
able to the loss of legitimacy when their opinions clash with those of the majority.
One diYculty of assessing accountability and independence is that formal
institutional structures (i.e. formal selection systems) often do not perform as
they are intended. On the basis of systematic empirical inquiry, Hall ( 2001 , 326 ), for
instance, asserts: ‘‘Court reformers underestimate the extent to which partisan
elections have a tangible substantive component and overestimate the extent to
which nonpartisan and retention races are insulated from partisan politics
and other contextual forces.’’ And clearly nonpartisan and retention elections are
unsuccessful at removing politics from the selection of state judges.
Many crucial unanswered problems in research on judicial selection systems
require additional investigation. For instance (as already mentioned above), what is
the eVect of the new-style of judicial elections on judges and courts? In addition, we
know too little about how lawyers decide to become judges (which often
entails signiWcantWnancial sacriWce) and how institutions establish incentives to
recruit systematically certain types of individuals. To what degree are courts
drawing on a pool of talent similar or dissimilar to that relied upon by other
political institutions? How and why do judges decide to leave the bench; are
strategic considerations at play; to what degree do judges work in concert with
executives (e.g. governors) to time and coordinate their departure from the bench?
Institutional change is also quite interesting: How do interest groups mobilize to
attempt to change judicial selection systems; what groups are involved and with
what degree of coordination; and how successful are they? We know that citizens
rarely want to give up their role in selecting judges; by what means are they
persuaded to rate independence more highly than accountability?
8 An interesting example of the obverse of this statement (as courts become more independent,
they become more eVective) is theWnding of Giles and Lancaster ( 1989 ) that willingness to use the
courts in Spain (litigiousness) increased rather dramatically after the fall of the Franco regime.
Lancaster and Giles attribute this to the growing legitimacy of the courts which emerged from the
perception that the courts are independent and impartial.
9 For an excellent account of the eVorts of constitutional courts in Central and Eastern Europe to
achieve judicial independence, see Schwartz 2000.
judicial institutions 529