Ethical Advantages and Disadvantages of an Appointed

Ethical Advantages and Disadvantages of an Appointed vs. An Elected Judiciary: The Case of Justice Harry L. Carrico

Following more than four decades of noteworthy judicial service, Justice Harry L. Carrico retired simply because he finally became too old to remain on the bench after he turned 70 years old. The valuable service by Justice Carrico is a good example of one of the advantages of an appointed judiciary, but his retirement has raised some questions concerning the ethical advantages and disadvantages of an appointed vs. An elected judiciary. To gain some further insights in this area, this paper provides a review of the article, "Carrico Ending 42 Years On High Court, Virginia's Chief Justice Retires After 42 Years of Judicial Service," followed by a summary of the research and important findings in the conclusion.

Review and Discussion

A wide range of appointed and elected approaches are in place for state judges across the country, with a majority being appointed rather than elected (Tarr, 2007). According to Tarr, "Twenty-one states initially appoint the judges of their general jurisdiction courts, while another four states appoint at least some of their trial judges. Twenty-two of the states that have intermediate appellate courts appoint their members, and thirty states appoint the justices of their supreme courts" (p. 291). In addition, even in those states in which judges are elected, there are still instances in which judges are appointed in order to fill unexpired terms (Tarr, 2007). The ethical advantages of this approach relate in large part to the ability of judges to adjudicate without concern for the political pressures de jour that might otherwise influence them. Although Justice Carrico may not be representative of all appointed judges, his service does make a good argument in support of the ethical advantages of an appointed judiciary. For instance, in the article, "Retiring chief justice spent 42 years on high court" appearing in the Richmond Times-Dispatch (January 31, 2003), the justice's service being characterized by 12-hour work days and a schedule that would exhaust many younger lawyers. According to the junior member of the court, Justice Donald W. Lemons, Justice Carrico's work ethic would be "almost mythical in proportion but for the fact that it's true" (2003, para. 2).

Indeed, Justice Carrico's career was characterized by consistent and increasingly responsible public service which may be attributable in large part to his ability to remain on the bench for so long. Despite the apparent advantages of this type of long-term judicial service Virginia state law requires justices to retire after 12 years of service (with minor exceptions being made for completion of current terms), and Justice Carrico was forced to retire despite wanting to remain on the bench. This event prompted Dubofsky (2007) and a number of other observers to ask, "Should judges be subject to term limits? If so, how long should a judge serve?" (p. 316).

Based on the fundamental differences between the judiciary and other branches of government in the U.S., though, Dubofsky (2007) suggests that term limits for judges "reflects a misunderstanding of the differences in our three branches of government and the need for independent courts" (p. 316). In support of this argument, Dubofsky cites the following reasons against an example 10-year term limit for judges:

1. Accountability already exists through the merit system for appointment, judicial performance review, and retention elections;

2. A maximum service of 10 years is too short for a judgeship applicant to give up a law practice.

3. Term limits that require a judge to be on the ballot so often interfere with judicial independence, and the 10-year limit on service will end productive careers of good judges too soon.

4. Just because term limits are in place for executive and legislative elected officials does not mean that term limits are appropriate for judges, who garner increased knowledge through years on the bench and who have the power to rule only on cases brought before the court (p. 316).