In our Judicial Decision-making (JD) class this week, we’ve been discussing what we want out of judges, and what selection and retention systems are most likely to get us there.

The central discussion is between judicial independence and judicial accountability – is there a way to thread that needle?

My inclination is no: if what we want are judges free to decide cases based on the facts and law, then ex post accountability mechanisms like elections deny that independence.

Social science studies confirm that, showing judges who are nearing an election, retention, partisan or nonpartisan, skew their rulings toward, e.g., increased harshness for criminal defendants.

There is more we may want out of judges, though. We want judges who are smart, who work industriously, who have a good temperament, who exercise good judgment – and more.

This set of factors underscores one important distinction, between selection and retention. We often talk about these together but they need to be pried apart.

A good selection system can try to find judges who will display the qualities we seek. That could be done with life tenure. Of course, there still will be judges we want to displace. But any subsequent retention decision may skew independence.

When it comes to retention, one also might distinguish trial judges – who have the fate of individuals in their hands – from high court judges, who also do, but who are responsible for the path of the law.

If the argument for ex post evaluation makes any sense, it is for these high court judges. Perhaps there should be accountability for the direction of the law - on major issues like abortion, the death penalty, campaign finance, etc.

If you are skeptical, consider judges doing the opposite of your personal preferences.

There is always the problem of minority rights. But query how good judges are at this? And whether it matters most at the trial court level? This is a hard question. (Most states use some form of election for retention of judges.)

Still, my students seem to be bullish on independence, even with judges whose judgments they dislike – like Supreme Court justices. I wonder if this is an artifact of law school conditioning, or a contempt for judicial elections.

I personally believe the federal appointments process is deeply broken and we are not selecting for the “best” judges.

I tend to favor merit selection, as used by many states, and by Jimmy Carter – though here, as in all selection systems, we need to take care to ensure diversity on the bench along many dimensions.

I also think life tenure is very broken. I don’t love judicial elections, but stocking the federal courts with very young judges to try to retain ideological control strikes me as a big mistake.

I’m attracted to proposals at the federal level to even out the appointments process so each party has an equal chance of appointing judges and justices, and I don’t think limited terms – like twenty years – are crazy.

There’s no magic bullet here – judges are human, and we both don’t want to and can’t scrub humanity from them, for better or for worse. But we could design better selection systems that attend more to the things we want in judges.