By Chris Keslar:
States select their judges in a couple different ways, but in thirty-nine states most or all judges are elected. Supporters of competitive elections for judges say that it is “the most democratic way to make judges accountable to the public.” Ohio is one such state, through constitutional mandate, to hold elections for judges. But do we really want courts to be accountable to the public? Or is the integrity of the law and its effective application of greater concern for the judiciary, and if so, is it incompatible with the interest of public accountability.
One concern which suggests that public accountability is incompatible with judicial integrity is a concern over partisanship. This is a concern that the dirty political fights, which take place in legislative elections are starting to make judges look like anything but “neutral arbiters of the law.” Even if you do not have party identifiers on the candidates for judges, like in Ohio, all that means is that there is one less factor informing voters about the actual judicial candidates. In a sense, when a state opts to elect judges it must chose between allowing partisan leanings to take hold in the election, thus calling into question the impartiality of the judge, or take away a major source of information for the voter.
In my experience, you can usually find a list of what judicial candidates a party supports, but I also know that just because a party supports a candidate for a judgeship does not mean that person is at all qualified. In fact, I voted for a candidate supported by the opposing party to my own because on further review the judge had a much more comprehensive resume and experience. If adds and research can solve the uninformed voter problem, and assuming that voters take the responsibility to vote based on merit, what problem is there with electing judges?
The problem comes with the idea that judges must be accountable to the people. This accountability comes at a cost as judges must continue their duties in the court during their campaigning. There is also the conceptual and practical absurdity that occurs within the very nature of political campaigning. While a politician is in a position to promise policies in exchange for voters’ support, a judge would abuse his power to even hint at offering his judicial decisions for the votes of the people. Not only would such an act blatantly contravene any interest in impartial judgment from the bench, but the usefulness, or trustworthiness, of a judge’s opinion would be diminished. The common law (i.e. judge made law) is a significant portion of our legal system. How stable of a system is it when we must question whether the decision is based on self interested pandering to the electorate?
Studies have found that judges facing re-election gave out harsher sentences, and those judges who had to compete in elections of over three million dollars tended to favor the prosecution in their decisions. Is this the accountability that we really want? People like being tough on crime and punishing wrong doing, but is that enough to risk the possibility that the justice system is being hijacked by the desire for retribution held by the populace? It is deeply concerning that any political race could effect outcomes of law.
Alexis de Tocqueville predicted that the American system of electing judges “will, sooner or later, have disastrous results.” Perhaps harsher sentences or more guilty sentences does not reach the level of “disastrous” in our minds, but the mere conceptual irregularity in having an elected judiciary is cause for concern.
While concerning the federal constitution, the Federalist Papers #78 provides a good background for the general conception of a judiciary. The judiciary has no power of the purse, strength, or wealth of society, but merely the power of judgment. The general public has no policy interest in the judiciary for the judiciary to be accountable to; when there is interest in a decision, the proper place for that interest is to be presented before the court and decided on the law and facts, not the ballot box. The whole reason that federal judges were to serve in a period of “good behavior” was to ensure a “steady, upright, and impartial administration of the laws.”
While it is true that any selection process has the potential, if not the reality, of being somewhat political, insulating the judiciary from passions of the electorate creates a more “steady, upright, and impartial” system of legal administration. Perhaps I am just too pessimistic about the voting public, but I do not believe that most voters will elect judges based on their merit or with much thought at all. Politicians face the public light all the time, they pass legislation that is based on policy preferences; in sum, their positions are perfect for a public selection process based on those policies. Judges make legal decisions, not often in the public light, and the quality of those decisions is not determined by how much a judge’s judicial reasoning matches with people’s personal views, but to what extent he or she can uphold the principals of law and the legal profession.
What we have with judicial elections is a case of the lay man selecting the expert; let’s hope we get lucky.