Jamelle Bouie, at The American Progress, posted a while back on a recent Report on the problems of judicial elections. Bouie emphasized two problems: (1) raising money for elections, and the pressure to be reelected might affect decisions; and (2) because judicial elections are not high-profile, voters are unable to make sound, informed decisions.
First, electing judges runs counter to the American idea of an independent judiciary; elections requiring fundraising, and it’s extremely difficult for a judge to appear impartial if — as a candidate — he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. …But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren’t that important to most voters. To most voters, judicial elections — even high profile elections for state Supreme Court seats — are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.In the end, the study’s authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it’s incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.
First, some counterpoints on the details. Regarding campaign money, it would certainly be a problem if a judge decided a case based on received or potential campaign contributions. However, if campaign financing is transparent, a case turning on campaign contributions should be easily overturned and, come the next election, that should be an easy issue for the opposing judge to run on. That may seem naive, but it is to point out that the risk of campaign contributions is not be a fundamental problem for elections.
Regarding voter knowledge, I don’t have any actual data on votor knowledge regarding judges, but my hunch is to agree that folks don’t research judge condidates nearly as much as they do the governors, state legislators, and federal candidates. However, I also strongly doubt that the same amount of voters do not base their votes for governors and Presidents on the judges that that official might appoint. At least with direct elections, the possibility exists that voters could research, and hold accountable, such judges directly. On the one hand, most folks blindly hand the decision to an executive that will, no doubt, appoint with some partisan slant. On the other hand, folks pull a lever for a judge based on the (D/R) next to the name or some other combination of factors resulting from the local electioneering.
More generally, I have long wrestled with the manner with which we place judges on the bench. North Carolina attempts to avoid some of the campaign cash-related problems with public financing for judicial elections. But, as the TAPPED post maintains, we should still ask whether it is better to have elected or appointed judges.
My gut reaction is usually to oppose judicial elections for the exact reasons pointed out by Ms. Bouie. But, there are some rubs to the alternative of appopinted judges.
To be appointed, the appointee needs to, in one way or another, have some ideological or political relation to the appointer. Sure, for high courts, a governor or President can pick from the legal all stars (though, of course there too, the appointer is looking for an idealogical fit). But imagine a governor choosing trial and appealate judges in a state without judicial elections. As my career fair judge suggested, that process is not occur in a pure judisprudential meritocracy. It is polical just as surely as elections.
The prime benefit to appointed judges is that, once appointed, the judge is presumably more free to rule based on the facts and the relevant laws without outside pressures of reelection, if his character is inclined to do so. I can think of two counterpoints to that: (1) A judge not facing reelection pressures can still decide cases based on factors other than facts and laws; it is, arguably, impossible to prevent a third factor, the judge’s ideological presumtions, from affecting the outcome. (2) There is nothing fundamentally making it impossible for voters to elect based on, and judges to run on, being good judges that rule based on facts, laws, and an intellectually honest judicial approach. If it were thus, elections would offset any problems associated with overly-politicized appointments and unhinged, ideological judges.
I’m still undecided; the point here is to flesh out the drawbacks of appointments because, like I said, that is what my gut prefers.
