Issue Report: Election of judges

Should judges be elected?

The election of judges has been a highly contentious issue for years. While most countries do not have judicial elections, prominent exceptions exist, including the United States, Japan, and Switzerland. In the United States, while Supreme Court justices are appointed without elections, many states within the union elect their high court judges. At all levels of government, the questions surrounding this debate remain fairly constant: Is the appointment of judges sufficiently democratic and are elected judges sufficiently accountable, or are elections necessary for this purpose? Is the appointment and confirmation of judges by elected officials sufficiently democratic? Are elected judges more susceptible to catering to campaign funders and special interests, and are they at risk of conflicts of interests in their rulings? Can these potential pitfalls be regulated – while maintaining elections – through, for example, the mandatory recusal of judges in cases where conflicts of interests may arise? Or, is this too much of a regulatory hassle? Does the potential of conflicts of interests with elected judges jeopardize the legitimacy of judicial rulings? Should judges generally be insulated from the election and campaign processes, for purposes of keeping them focused on the law and court cases? Is such insulation from politics important in maintaining an independent judiciary that is more capable of checking the other branches of government? Are voters capable of electing qualified and possibly superior judges, or are they prone to elect less qualified ones? Overall, how does the importance of having high officials directly accountable to the people weigh against the potential costs surrounding the election judges? Overall, is the election of judges a good idea?

Accountability: Will elections make judges more or less accountable?

Elections make judges more democratically accountable

David Dewold. "Electing judges keeps them accountable." Seattle PI. November 3, 2006:

“Judicial races are not just beauty contests. The reason our state constitution provides for the election of judges is not because the voters are more skilled than the governor at evaluating resumes, but because judges should be accountable to the people through the electoral process for their fidelity to the rule of law.”

Elected judges are more in tune with public opinion

The system of training through law schools and vocational work is elitist and prolonged, and leaves judges’ opinions at risk of being, or appearing, out of date or out of touch. Law schools have a reputation for being more liberal than the majority. Judges are often seen as lacking knowledge of recent social trends. Elections can help reverse these trends by forcing judges to understand and respect public opinion so they can advance a form of law that is seen as “just” to all citizens, not just to their own conscience.

Judicial elections are far more transparent than appointments.

This is true in many ways. First, the actual competitive election and campaigning process reveals the nature of judicial candidates, as compared to the judicial appointment process where there is no effort required to make citizens aware of an judges qualifications. And, due to the higher profile of elections, the judiciary takes on a much more prominent public profile, receiving greater scrutiny from the public and journalists, all which increase transparency and accountability.

Elected judges wrongly interpret public opinion over the law

Legal decisions require a strict interpretation of law. It should not be driven by popular opinion. Yet, this is precisely what judicial elections call for. This diverges from basic judicial principles of applying the law objectively and neutrally.

Election of judges bows to tyranny of the majority.

Without elections, the judiciary is a branch of government that is isolated away from elections, and a check is placed on the potential for a tyranny of the majority, which can occur when a majority of the population retains dominance in elections.

Judges can be made accountable without elections.

Judges are held to account by their ability to publish dissents, and by those who have the time and special knowledge needed to assess their capability. In some countries, such as the UK, judges can theoretically be dismissed by a vote of the legislature.

Many officials are appointed; why not judges as well?

Public life is already run by career civil servants and unelected officials. There is no reason why the judiciary should be any different.

Judges are appointed/confirmed by elected officials, democratically.

Judges are appointed and confirmed by elected officials, which means that they are democratically appointed, albeit indirectly, via the people’s elected represantives. This is common and appropriate in a republic, that some individuals are not directly elected, but whom are democratically accountable one-step-removed. Appointed judges, therefore, are not removed from the election process and the people’s judgement; they are at arms length to the democratic, electoral process.

General statements against the election of judges

Voters: Can voters and elections do a good job at electing judges?

Voters will ensure elected judges uphold the rule of law

Voters have at heart upholding the rule of law, particularly because they are interested in maintaining their individual rights. Elections will not take judges away from the rule of law. Instead, it will prevent judges from applying radical individual preferences, and help keep judges in-line with the rule of law.

Judicial elections elevate debate and awareness of judiciary

"In defense of elections". The Record. August 14, 2005: "we don’t mean [judicial elections are] “better” because of who prevailed-this newspaper supported Karmeier-- but rather because of how much was debated. The election raised important issues never before argued publicly in the 5th Judicial District. Thanks to record spending we saw record campaigning and candidate communications-activating a once judiciary-ambivalent electorate."

“we don’t mean [judicial elections are] “better” because of who prevailed-this newspaper supported Karmeier– but rather because of how much was debated. The election raised important issues never before argued publicly in the 5th Judicial District. Thanks to record spending we saw record campaigning and candidate communications-activating a once judiciary-ambivalent electorate.”

Voters don't have enough info to pick the best judges

Voters are overwhelmed with so much information, and so many candidates, they usually know little to nothing about candidates for judges. This means that the resulting choice has little to do with the merit of the candidate. Instead, it is simply a crapshoot shot in the dark from voters that just don’t know enough to make a good choice.

Judges cannot voice their opinions, so how can voters decide?

This is similar to the above argument, but it emphasizes that the problem of a lack of information for voters cannot be solved, as judges are supposed to remain silent on their politics, so that they can neutrally and objectively judge individual cases on their own merits.

Election of judges delegitimizes their role

Jason Kleinman. "So should we elect our judges or is there a better way?" Why it's our City. June 15th, 2009:

“Here’s what electing judges does. It forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Not surprisingly, those voters fall back on dumb factors such as ballot position, ethnic surnames and who bought the most TV ads. Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire.”

Corruption: Do elections or appointments better avoid corruption?

Elected judge conflicts of interests can be sufficiently regulated

The US Supreme Court ruled in a June 2009 West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats. This is a sufficient measure to reduce the chances of corruption, while maintaining judicial elections.[1]

Adam Liptak. "Looking Anew at Campaign Cash and Elected Judges". New York Times. January 29, 2008:

“you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person’s case.”

Correlation b/w interests of donors and judges doesn't prove corruption.

Some have tried to demonstrate a correlation between the interests of donors to the election campaigns of judges and the ultimate decisions of those judges. The idea behind these studies is that such a correlation demonstrates a tendency for judges to be biased or corrupted in favor of the views of their funders. Yet, such a conclusion is hard to prove. Donors are only likely to give money to judges that demonstrate a likelihood, irrespective of the money, to make decisions according to a certain philosophy that correlates to their own interests. The direction of the causality is important to recognize. Donors are giving money to those that are likely to uphold their interests; judges are not necessarily bending their judicial philosophies and decisions to cador to the interests of donors.

Appointment of judges is more prone to corruption than elections.

The appointment of judges can be done corruptly, in which a judge is appointed based solely on a close relationship, or because their is some promise of financial reward for making the appointment. And, after the election, there is a risk that a judge will pass biased judgement in favor of the one that appointed them, as a way of compensating them for the appointment. This is of at least equal concern compared to the possibility of corruption surrounding elections, and judgments later passed in favor of campaign donors. What may make elections less potentially corrupting is the fact that the process of selecting the judge (an election) is much less likely to be biased or corrupt, as compared to an appointment by one individual.

Elections damage trust in impartiality of judges

Robert Heim. "Getting campaigns out of the courtroom" The Philadelphia Inquirer. June 18, 2009:

“Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge’s campaign committee and had contributed to the campaign. After a pause, the client whispered back, ‘So why didn’t you contribute?'”

Elected justices are corruptly influenced by campaign funders

Susan Finch. "Money Talks, Says Study of Justices". The Times-Picayune. February 1, 2008:

“a Tulane Law School professor has concluded after he and another scholar studied voting patterns on the state’s high court over 14 years. In 181 civil cases between 1992 and 2006, the nine justices have been significantly influenced by campaign donations in making their decisions, says the study, which is soon to be published in the Tulane Law Review.”

Donors influence judges' decisions; not issue of common philosophy

Some argue that donors are simply giving money to judges of similar judicial philosophies. Yet, some statistics demonstrate a clear tendency of judges to actively shifttheir positions in favor of their campaign donors. These statistics show the causality is of judges actively bending their positions in favor of their donors’ positions, not simply of donors giving money to judges of a similar judicial philosophy.

Lawyers may fund judge campaigns to influence trials

"Elect to appoint judges instead". York Daily Record. June 12, 2009:

“These statewide races are expensive — they can cost millions. Where do you think all that money comes from? In many cases, lawyers. […] Lawyers who often wind up trying cases before the very judges they helped elect.”

Elected judges increase the influence of special interests

The election of judges opens the door to special interests supporting campaigns and subsequently “buying” influence over judges.

Elected judges bring hassle of regulating conflicts of interests

"Elect to appoint judges instead". York Daily Record. June 12, 2009:

“The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats. […] If Pennsylvania used a merit selection process — as proposed in recently introduced legislation — we wouldn’t have to worry about running afoul of that ruling and judges wouldn’t have to try to figure out whether a $50 donation requires recrusal.”

Impossible to avoid big-money influence in judicial elections

"A question of integrity". News & Record of Greensboro. June 19, 2009:

“Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.”

Checks and balances: Do elected judiciaries better uphold checks and balances?

Unelected judiciaries are prone to recklessly expanding their powers.

Thomas Jefferson: “the germ of dissolution of our federal government is in the Constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one.”[2]

Appointed judiciaries are more independent to check other branches

In Federalist 78, Alexander Hamilton argued for the independence of judges. He believed they should be appointed to serve “during good behavior” and insulated from the political process, as this helps them check the legislative and executive branches. The main reason for this is that it is more difficult for a judge that is affiliated with a political party and in need of campaign funds from that party, to pass rulings against their Party leaders in the Congress, Parliament, or executive branch.[3]

Quality: Do elections improve the quality of judges?

It is up to the people to decide which judges "merit" election.

It is presumptuous to conclude that the electorate is ill-qualified to determine the qualifications and merit of prospective judges and make appropriate selections based on their collective judgement of merit. Should we conclude that a single governor is more qualified to make such a judgement of merit? This is a highly presumptuous proposition.

Screening can help ensure judicial candidates have sufficient merit.

Some have proposed a kind of hybrid system in which judicial elections exist, but in which a pre-screening process ensures that all candidates appropriately qualified to become a judge. This maintains the ability of voters to choose based on their best judgement, but also ensures against instances in which wholly unqualified judges are elected to the bench. This, along with other possible systems, demonstrate that it is unnecessary to entirely rid the system of elections. Elections can be maintained, while various mechanisms can be worked into place that check against any of the difficulties they may produce.

Elections and campaigning distracts judges from responsibilities

"Should we elect judges?". Belief Net. June 9, 2009:

“there’s the issue that election campaigning isn’t always the best use of a judge’s time. We expect our judges to handle a lot of cases in a given year, and the need, in a hotly-contested race, to make speeches, travel to meet with constituent groups, give access to the media for interviews etc. means a portion, possibly a large one, of the judge’s time and attention during an election year are going to be demanded by the campaign itself.”

Political style will replace merit with election of judges

In judicial elections, money, looks, celebrity, or unabashed populism will triumph over reasoned and balanced moderation. This is typical in politics, and it will also be the case in judicial politics and elections.

Elections frequently unseat experienced, and seat inexperienced, judges.

In general, elections tend to create a higher rate of turnover in the judiciary. This means that experienced judges are more quickly booted out of office and replaced by less experienced judges. This does not benefit democracy.

Judicial elections are known to produce inferior judiciaries

Walter Olson. "Judicial elections: a dissenting view". Point of Law. July 17, 2008:

“Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies — in Western Europe, Japan, Canada — as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive ‘American disease’ of law.”

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