Judicial independence is threatened. During the 1990s, representatives of both political parties have subjected individual judges to attacks and threats of impeachment. Judges who make rulings in favor of defendants' rights on constitutional grounds are the most popular targets. When calling for the impeachment of such judges, politicians often resort to making accusations of activism and being soft on crime against the judges.
“Soft” judges should be removed
Arguments supporting the position that “soft” judges should be removed are as follows:
Judges who are soft on crime decide cases according to political values instead of the facts.
As part of the criminal justice system, judges should do everything within their power to punish criminals. If the public insists that judges get tough with criminals, it is the duty of judges to satisfy the public.
“Soft” judges should not be removed
Counterarguments run as follows:
Those wanting the removal of certain judges use “soft” and other prejudiced terms to conjure up an attitude more hostile to certain judges than the unadorned facts would elicit. This “fallacy of loaded words” violates a basic principle of public discourse: a fair argument requires a conscious effort to put forth a case in terms that are neutral.
Threats to impeach have a chilling effect on judges because they interfere with a court's decisional independence. Judges are guardians of justice and are supposed to act according to the law, not according to the passions of the public.
Evaluating the proposition that “soft” judges ought to be removed
Critics of the notion of eliminating “soft” judges assert that it rests more on political beliefs than on principle or sound reasoning. They point out that threats to judicial independence are greater in many state court systems than in the federal judiciary because voters elect state court judges in many states. The election process for judicial selection in many states also raises concerns about the impact of campaign financing on judicial impartiality. Even those states that use some form of merit selection make judges stand for retention elections.
There is no question that fund‐raising for judicial elections creates potential conflicts of interest that reflect badly on the independence of the judiciary. Judicial candidates who can raise the most money or are personally wealthy usually win judicial elections. For communities of color, the lack of financial resources blocks their candidates from getting elected. Setting spending caps for candidates and changing from election to merit selection are possible solutions.