It is difficult to invoke the twin phrases "judicial independence" and "partisan politics" in the same breath in the wake of the 2000 election without bringing to mind the circumstances of the election of George W. Bush and the duel between the Florida Supreme Court and the United States Supreme Court. Nonetheless, as any observer of the judiciary would agree, the 2000 election has ramifications for the judiciary that go beyond the immediate fall-out in terms of public attitudes towards the courts and the legitimacy of their decisions. The confirmation hearings of Judge Ronnie White's nemesis John Ashcroft for Attorney General and the unfilled slate of judicial appointments left over from the Clinton administration are just two of the judicial issues that will remain in the news over the coming months.

        The 2000 elections, however, provide another confluence of judicial politics and partisan politics that has received less attention. With the conclusion of the 2000 census, many state legislatures will now turn their attention to the decennial redrawing of Congressional districts and the legal battles that will certainly ensue in many states. These events are important for academics, because they provide for study an important intersection of the political parties and the judiciary for study, yet they are also important for those outside of the academy because of the critical importance of judicial rulings in shaping state legislatures and the United States House of Representatives in an era when partisan control of Congress and in many state legislatures hangs in the balance. In the wake of the Supreme Court's potentially pivotal, yet largely unnoticed decision in Growe v. Emison, judges dependent upon favor from their parties for re-election may be drawn further into the fray to rule on the Constitutionality of redistricting plans. In the past, although state courts have exercised some jurisdiction over redistricting, most cases have landed in the federal courts, which have arguably served as somewhat of a neutral arbiter of the legitimacy of majority/minority districts. The Supreme Court's indication that it will defer this responsibility to state court judges, many of whom are not granted the insulation from politics granted federal judges once they reach the bench, provides a unique advocacy and measurement opportunity. Researchers have often stumbled over how to measure bias or ideology in judicial decision; the presence of political parties as litigants provides a far easier measurement tool to judge the ways in which decisions are made. The lack of clear standards for judges in redistricting cases and the messy aspects of redistricting law should also set off alarms for those who seek to minimize the role of partisanship in judicial decisions.
 

        Any inquiry into the role of partisanship in judicial decisions must obviously begin with a normative question - how independent should judges be? And are partisanship and judicial independence antithetical concepts? There are many definitions of what judicial independence is, yet most agree on two aspects. First, the judiciary should be free from retaliation by interest groups or politicians for correct, yet unpopular, decisions. Second, judges should place the merits of each case and the legal interpretation of each case over their own static or progressive ambition (that is, their desire to remain on the bench or to seek a higher position in the judiciary or in another governmental office). There is, obviously, a tension between these two tenets. No one would argue that judges should not be accountable, in some form, to the general public, and the most direct means of holding judges accountable is either through elections or the threat of removal by the legislature. To argue that all voters, and all legislators, should thoroughly ignore their own political preferences and merely decide whether decisions are legally correct, according to precedent, is to ask of them a herculean task, particularly in areas where precedent is ill-defined. On the one hand, Fein and Neuborne's (2000) claim that decisions ought to fall within "the bounds of general acceptance" is certainly a subjective claim, as these boundaries are not precisely defined. On the other hand, to appoint informed arbiters of these boundaries - in the form of judicial nominating commissions, for instance - does not entirely evade this problem, because someone, presumably an elected official with more easily admitted partisan ambitions, must still appoint the appointees. We can certainly seek to adjust the rules regarding how judges are to be held accountable - by, for instance, placing limits on the types of campaigns that can be waged against judges - or to whom they shall be held accountable, but it is certainly an impractical goal to seek to entirely eliminate the "taint" of partisanship from judicial appointments or elections.

        These imprecisions lead to difficulty in defining judicial behavior. A crucial subject of study that falls under the rubric of judicial independence is the formal and informal campaigns that have been waged against judges and judicial nominees. Yet implicit in the study of these campaigns and of the study of judicial independence in general is the tenet that judges who fear some type of retribution for politically unpopular decisions will behave in a different way than those who do not. Findings of such behavior, however, have been scarce.⁽¹⁾ They have been scarce in no small part because of difficulty in measuring bias or ideology. Studies such as that of Atkins and Glick (1974) have posited the potential for a bias towards the state for appointed judges; O'Callaghan (1991) has posited the potential for more stringent sentencing in criminal cases or drunk driving cases for judges concerned about re-election; Gann Hall (1992) has identified partisanship as a major determinant of judicial voting behavior on state supreme courts, and has also posited that judges concerned about re-election will be reluctant to dissent. Most notably, Baum (1994) has sought to develop a judicial ideology measure similar to the interest group scores used for members of Congress. Although some of these studies have yielded tentative differences between selection systems - and thus have indicated that judges decide differently if they do fear retribution - these measurement tools can be problematic unless spread over an extremely wide range of cases because they run the risk of evading issues pertaining to the merits of the case itself and honest legal disagreements among the judges about the appropriate verdict.

        To my knowledge, there has been little investigation into judges' decision-making patterns on cases brought by political parties. Judges' decisions in cases brought by the parties may provide one of the clearest indicators of any potential bias or fear of retribution in judges' decisions, particularly in the case of state judges subject to partisan or retention elections.⁽²⁾
 
 

        Although I have not verified this, it would seem that litigation by the parties has been on the upswing over the past three decades. In many federal cases, the courts have deferred to other branches of government the ability to set up tribunals to hear legal complaints. This has not always been a particularly successful remedy. For instance, the Federal Elections Commission, created in the wake of the Federal Elections and Campaigns Act of 1974 and the subsequent Buckley v. Valeo Supreme Court decision, and given by Congress standing to hear complaints regarding campaign finance violations, has been famously ineffective at curbing abuses of campaign law. The FEC is staffed by an equal number of Democrats and Republicans, so as to provide balance, but Congress has consistently funded the FEC at low levels, and the lengthy process of filing complaints with the FEC has ensured that if the FEC does find campaign finance violations, its findings have no effect upon the election upon which it is ruling. The recent Virginia case concerning the use of census sampling data in reapportionment, as well as the redistricting cases of the 1980s have seen the parties in court with great frequency over the past decade. The partisan issues at stake here, of course, transcend the individual campaign approach of the FEC and may render any sort of tribunal approach outside of the courts impractical.

        Since the 1960s and the Baker v. Carr decision, the parties or their surrogates have filed numerous claims with the courts regarding the apportionment of congressional and legislative districts. As Dixon (1968: vii) notes,

The great merit of Baker v. Carr was in opening the way for judicial action to galvanize the political branches into more effective discharge of their political function of working out viable representation systems.

In addition to the fact that state judiciaries are not bound by the federal separation of powers doctrine and federal precepts of justiciability, there had been little discussion of standing and justiciability in the state cases. The older breed of rough-and-ready state judges tended to ignore these niceties of advanced jurisprudence. Even where state courts acted, they were weak in formulating remedies and rarely did more than invalidate legislative action, often under relatively precise state constitutional standards.

        In the wake of Baker, and particularly in the wake of the Voting Rights Act amendments, litigation surrounding redistricting has become a regular activity. In the 1990s, for instance, North Carolina's redistricting scheme was invalidated three times, forcing two redrawings of districts and leaving the 2000 election to take place with districts that the court had rejected. Texas faced similar difficulties. The problem in these states may not be any attempt to deliberately gerrymander so much as it is a difficult set of standards to meet. The Supreme Court's interpretation of the Voting Rights Act amendments, as manifested in Thornburg v. Gingles, is that majority-minority districts "should be created where voting is racially polarized and minorities are sufficiently large and geographically compact to constitute a majority in any district." The court has sought to develop techniques to specify how it measures compactness, but as Young (1988) shows, there are no easily agreed upon standards here; using a simple Monte Carlo algorithm, one can draw districts that meet any mathematical standard yet clearly appear to the eye to be bizarrely shaped.

        The Supreme Court's Growe v. Emison decision would appear to hand some level of authority over redistricting back to the state courts. Growe was filed in response to redistricting of state legislative districts in Minnesota following the 1990 census; the appellants held that Minnesota's districts were malapportioned by the legislature. The state court had issued a redistricting plan of its own to alter the districts, and a Federal District Court threw out the state court's plan and set a timetable for the legislature to act. In the Growe ruling, written by Justice Scalia, the court unanimously reversed the District Court's ruling and reinstated the state court plan. According to staff members of the parties' congressional campaign committees with whom I have spoken, this decision will ensure that litigation concerning redistricting will have to go through the state courts before arriving in federal court. A recent Harvard Law Review note, which starts from a similar point of view on judicial independence to mine, outlines potential ways in which litigants can still avoid state courts, but concedes that the Growe decision makes it more difficult to do so than it had been previously (Harvard Law Review 2001).

        Why does this path matter in terms of judicial independence? Some work has been done, both by formal modelers and by legal scholars, on the logic of filing cases with the state courts versus the federal courts, so the comparative merits for the litigants of federal and state court cases has been worked out to some degree (see Lloyd 1995). The new wrinkle to all of this is that the politics of judicial elections and appointments may also become more contentious with the potential for control of the House of Representatives or of state legislatures at stake.

        I recently spoke with a Pennsylvania appellate court judge about the politics of Supreme Court campaigns in Pennsylvania. As a new Pennsylvania resident, I asked him if Pennsylvania had had any judicial campaigns that generated the controversy of the Henry Frye campaign in North Carolina or the Alice Resnick campaign in Ohio. He responded that none had, but that the upcoming election in Pennsylvania certainly would because of the imminent redistricting. The Pennsylvania court is evenly split between Democrats and Republicans, so the upcoming election will decide which party has a majority on the court. In a state losing two seats in the US House, and with a closely divided state legislature, the state courts will be crucial to both the state and the national parties. Recent state legislative races in Pennsylvania have already attracted national political interests, with Presidential candidate Al Gore arriving in Pennsylvania to campaign for a candidate in a special election for the State House. It is easy to foresee the upcoming Pennsylvania Supreme Court election also generating similar interest.
 
 

        As I note above, it may well be a fruitless quest to seek to completely remove partisan politics from judicial elections or judicial appointments. Nonetheless, the increased party scrutiny of judicial campaigns does not bode well for the independence of the judiciary. It would seem that partisanship on the bench can easily be measured by researchers, without the difficulties that have obtained in seeking to measure somewhat more subjective sources of bias or ideology, so analysts may well have a new tool for measuring whether party influence does play a role in judicial decisions. On a more normative level, however, the upcoming round of redistricting battles may provide an opportunity to advance the cause of judicial independence by allowing proponents to pose the question of whether we want judges who run with party labels, and are beneficiaries or targets of party campaigns, to be deciding issues pertaining to the fate of their party at the state or national level. Redistricting is clearly a partisan activity in most states, and it would seem that the Constitution's provision that "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof" does establish a presumption that state interest should precede national interest. This provision has already, of course, been abridged by the Voting Rights Act, but the fundamental issue here is not only the potential for racial bias in redistricting, it is the potential for partisan bias in state courts to precede considerations of any alleged racial bias. In other words, judges with a stake in these nebulous legal debates seem unlikely to seek a neutral point of view on redistricting.⁽³⁾

        Any strategy that calls attention to party litigation before the courts, however, risks falling under the partisan rubric itself. Such a strategy surely runs the risk of being labeled a "sour grapes" approach, much as the arguments of both parties in Florida about the legitimacy of the Florida and U.S. Supreme Court decisions have. This, again, is nothing new; defenses of particular judges involved in heated re-election or retention campaigns have also been vulnerable to this claim, as have discussions of "activist" judges and strict constructionism. Any attempt to highlight the dangers of excessive party involvement in judicial campaigns would, at a minimum, require a focus on judicial elections in both Democratic- and Republican-controlled states. Such an approach also would require that the debate not be conducted around the merits of the Growe decision; instead, discussions of the parties' activities in courts might well focus around the kind of courts that states have and the ways in which state judges reach the bench. Whereas some of the concern regarding Growe has been directed at returning redistricting cases to the federal courts, it would seem that the same concern can also be channeled into calls for states to re-evaluate the wisdom of partisan elections and of vocal party-based campaigns on behalf of, or in opposition to, state judges.

        Much of the discussion of reapportionment, as well as the discussion of other party activities that land in court, contains a certain element of gamesmanship - of seeking to present an argument or file a case aimed at getting the party's preferred result. This is as it should be - despite the pejorative connotations that have been associated with gerrymandering or various campaigning techniques, a party that did not try to work within the law to advantage itself would not be a party able to sustain power. Egregious violations of campaign law can and should be punished, but within the bounds of the law, it is indisputable that congressional and legislative politics can and should allow for partisanship. The judiciary, however, is expected to be the buffer between partisan politics and the legal statutes that govern what is acceptable. It may be impractical to expect the judiciary to be entirely removed from the broader trends of partisan electoral politics, but it seems that calling attention to ways in which partisan influence over judges' tenure in office can be minimized is crucial to preventing the erosion of public confidence in both the judiciary and in the legislators who are dependent upon court decisions.
 

Atkins, Burton M., and Henry R. Glick. 1974. "Formal Judicial Recruitment and State Supreme Court Decisions." American Politics Quarterly 2: 427.

Baum, Lawrence. 1994. "What Judges Want: Judges' Goals and Judicial Behavior." Western Political Quarterly 39: 361.

Boatright, Robert G., and Kevin M. Esterling. 1999. "Methodological Issues in the Study of Jury Selection." Research on Judicial Selection 1: 73.

Dixon, Robert G. 1968. Democratic Representation: Reapportionment in Law and Politics. New York: Oxford University Press.

Fein, Bruce, and Burt Neuborne. 2000. "Why Should We Care About Independent and Accountable Judges?" Judicature 84.

Hall, Melinda Gann. 1992. "Electoral Politics and Strategic Voting in State Supreme Courts." Journal of Politics 54: 427.

Harvard Law Review. 2001. "Note: Federal Court Involvement in Redistricting Litigation." Harvard Law Review 114: 878-900.

Lloyd, Randall. 1995. "Separating Partisanship from Party in Judicial Research: Reapportionment in the US District Courts." American Political Science Review 89: PAGE CITE.

O'Callaghan, Jerome. 1991. "Another Test for the Merit Plan." Justice Systems Journal 14: 477.

Young, H. Peyton. 1988. "Measuring the Compactness of Legislative Districts." Legislative Studies Quarterly 13: 105.

2. Although how we precisely define "party-inspired litigation" is not necessarily clear; many of the prominent redistricting cases, while clearly prompted and supported by parties, do not feature the parties directly as the primary litigants.

3. As anecdotal evidence of this, see the Harvard Law Review (2001) note's discussion of an Illinois redistricting case in which one Democratic judge on a court with a 4-3 Democratic majority switched his vote to support of the Republican plan - and soon thereafter announced his intention to run as a Republican in his next re-election bid.