If the idea of such a charter was unique, the document itself was truly remarkable. It dispersed authority among three branches of government and provided that the third, the judiciary, would be profoundly different from the other two.

Unlike Congress and the president, jurists would be insulated from elective politics. Federal judges, appointed by the president with the advice and consent of the Senate, would serve for life so long as they maintained "Good behavior."

The concept of an independent judiciary, responsible for upholding the rule of law and for protecting constitutional rights even when disfavored by the politics of the moment, is one of America's fundamental contributions to the cause of liberty. Nonetheless, the idea still needs nurturing.

Wherever we see power abused elsewhere in the world, whether it be the suppression of dissident views in China or the jailing of journalists in Turkey, we see judicial systems succumbing to political control. Indeed, reflecting upon our own history, we may ponder when or whether a politicized Supreme Court would have held that the Constitution forbids racial segregation, that every person's vote should carry equal weight, or that anyone charged with a serious crime has a right to counsel.

Judicial independence does not mean a lack of accountability; federal judges can be impeached. Moreover, in virtually all state judicial systems, the states' highest courts may remove judges for cause such as incapacity or conduct that reduces respect for judicial office.

These important but narrowly tailored forms of accountability do not threaten judicial independence. But many states, including Kentucky, have gone beyond accountability and have created something that the framers of our Constitution firmly rejected: a judiciary in which judges must seek popular approval by running for office.

Although judges and judicial office seekers in Kentucky do not run with Republican or Democratic labels, their campaigns in many other ways resemble those waged by candidates for legislative or executive political offices.

Judicial candidates run in contested races, and they or their campaign committees spend money on flyers, billboards, media advertisements, and other forms of political communication. Judicial candidates are directed by the Kentucky Code of Judicial Conduct to "maintain the dignity appropriate to judicial office" and to refrain from making "pledges or promises of conduct in office." But they, like all candidates for elective office, must develop campaign strategies that will distinguish them from opponents, appeal to the various viewpoints of voters, and produce results when ballots are counted.

Judicial electioneering undermines judicial independence; the financing of judicial campaigns raises questions about the impartiality of judges. Even if most lawyers and other contributors to judicial campaigns are motivated only by a civic interest in the fair, effective administration of justice, the public may not share that perception. Judicial integrity is fragile; it is easily impugned.

Granted, judicial elections keep judges close to the people. An elected judiciary comports with a populist strain in American politics, and it may reflect a distrust of executive authority exercised in appointing judges. Some states balance the elective and appointive approaches by requiring appointed judges to stand periodically for retention in uncontested elections. This system, known as the Missouri Plan, subjects judges to public review of their records, but it does not force them to run against opponents. The Missouri Plan reduces judicial campaigning, diminishing the problem of campaign fund-raising.

So long as Kentucky elects judges, however, anyone appointed to fill a judicial vacancy must anticipate a contest at the next election, start planning a campaign, and develop a way to pay for it. That system is not what James Madison and other framers of the Constitution had in mind. But would the national model of appointed judges work in Kentucky? Should we have that system?

More modestly, could Kentucky's existing system be improved by strengthening merit selection in filling judicial vacancies and by adopting the Missouri Plan for retention elections? More modestly yet, if contested elections are here to stay, could judicial-campaign financing be reformed?

Donald L. Burnett Jr., a former Idaho appellate judge and bar association president, is dean of the Louis D. Brandeis School of Law at the University of Louisville and co-chair of the Kentucky Center for Public Issues' Policy Council on Judicial Issues. He is a graduate of Harvard and he holds law degrees from the University of Chicago and the University of Virginia.