Popular election of judges (either original election or retention election) is a terrible idea.
There are significant drawbacks to judicial elections. First, this system requires that any prospective judge subject himself to the vicissitudes and indignities of the election process. This means assembling a campaign committee, raising campaign contributions, appearing before various groups to solicit votes, and spending significant amounts of time on the “campaign trail”. These issues assume even greater importance when the position sought covers a large geographic area (appellate court judges), and especially when it involves the entire state (Supreme Court justices). It is highly unlikely that the most qualified and best suited candidates (who, ideally, would be individuals having significant experience in the practice of law, possibly with some academic experience added in) would subject themselves to this process. Indeed, the process seems designed to attract the least qualified candidates, not the best.
Nearly all campaign contributions in judicial elections come from those who have a direct pecuniary interest in the outcome: the lawyers who practice in those courts. The end result is that in states with judicial elections the process is dominated by the trial lawyers and their professional associations. Nearly all judges come from among their ranks, and all have unspoken obligations to those responsible for their position. These courts become noticeably skewed in favor of the plaintiffs’ bar, and the even-handed administration of justice (and thus the reputation of the state itself) suffers as a result.
Finally, and perhaps most important, the general public has no means of forming a reasoned judgment as to the relative merits of judicial candidates. The average elector knows little or nothing of the qualities which a good judge should possess, or even what constitutes appropriate “judicial temperament”. The general public simply has no rational basis for evaluating or choosing judges. If they give it any thought at all, electors might rely on the recommendations of persons of authority (other judges, the state Bar Association, political leaders, etc.). But as a practical matter, if the elections are partisan most people will simply vote for the candidate bearing the imprimatur of their preferred political party, and if they are nonpartisan for most people the choice is simply an uneducated guess: which candidate has a familiar name or is the most photogenic.
Many of the defects inherent in judicial elections also apply to judicial retention elections, in which sitting judges run for re-appointment to their seats. Most people pay little attention to judges anyway, so retention elections tend to be mere rubber stamps of the incumbent since there isn’t even an opponent to spark thought about the candidate. The only exception to this is where a specific judge has been responsible for a decision which sparked popular outrage, or aroused the ire of a vocal special-interest group which makes removal of that judge its objective. However, popular opinion (or the desires of advocacy groups) is not necessarily the best, or even an appropriate, measure of judicial competence. Judges are required to enforce the laws and adhere to the Constitution, and the results are not always popular. The specter of an impending election should have no bearing on judicial decisions, but that result is inevitable in judicial retention election states.
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Popular election of judges (either original election or retention election) is a terrible idea.
There are significant drawbacks to judicial elections. First, this system requires that any prospective judge subject himself to the vicissitudes and indignities of the election process. This means assembling a campaign committee, raising campaign contributions, appearing before various groups to solicit votes, and spending significant amounts of time on the “campaign trail”. These issues assume even greater importance when the position sought covers a large geographic area (appellate court judges), and especially when it involves the entire state (Supreme Court justices). It is highly unlikely that the most qualified and best suited candidates (who, ideally, would be individuals having significant experience in the practice of law, possibly with some academic experience added in) would subject themselves to this process. Indeed, the process seems designed to attract the least qualified candidates, not the best.
Nearly all campaign contributions in judicial elections come from those who have a direct pecuniary interest in the outcome: the lawyers who practice in those courts. The end result is that in states with judicial elections the process is dominated by the trial lawyers and their professional associations. Nearly all judges come from among their ranks, and all have unspoken obligations to those responsible for their position. These courts become noticeably skewed in favor of the plaintiffs’ bar, and the even-handed administration of justice (and thus the reputation of the state itself) suffers as a result.
Finally, and perhaps most important, the general public has no means of forming a reasoned judgment as to the relative merits of judicial candidates. The average elector knows little or nothing of the qualities which a good judge should possess, or even what constitutes appropriate “judicial temperament”. The general public simply has no rational basis for evaluating or choosing judges. If they give it any thought at all, electors might rely on the recommendations of persons of authority (other judges, the state Bar Association, political leaders, etc.). But as a practical matter, if the elections are partisan most people will simply vote for the candidate bearing the imprimatur of their preferred political party, and if they are nonpartisan for most people the choice is simply an uneducated guess: which candidate has a familiar name or is the most photogenic.
Many of the defects inherent in judicial elections also apply to judicial retention elections, in which sitting judges run for re-appointment to their seats. Most people pay little attention to judges anyway, so retention elections tend to be mere rubber stamps of the incumbent since there isn’t even an opponent to spark thought about the candidate. The only exception to this is where a specific judge has been responsible for a decision which sparked popular outrage, or aroused the ire of a vocal special-interest group which makes removal of that judge its objective. However, popular opinion (or the desires of advocacy groups) is not necessarily the best, or even an appropriate, measure of judicial competence. Judges are required to enforce the laws and adhere to the Constitution, and the results are not always popular. The specter of an impending election should have no bearing on judicial decisions, but that result is inevitable in judicial retention election states.