Why We Vote for Judges – and Should We?

Supreme Court gavel

The American Prospect’s Paul Waldman told us on October 31 that, “With a couple of minor exceptions, like a few local judgeships in Switzerland, the United States is the only country where judges are elected.” According to Waldman,

Indeed, to the rest of the world, the idea of judges running for office—begging for money, airing attack ads against their opponents, thinking always about their next election even after they take the bench—is positively insane. And they’re right.

He relates the story of Judith French, a member of the Ohio Supreme Court who, while running to retain her seat, told a crowd “at which she introduced Republican Gov. John Kasich, ‘I am a Republican and you should vote for me.'”

Brian Haas at The Tennessean, calls this “tainted justice”:

Research shows that contested elections for high-court judges have led to problems at times, whether it’s the influence of huge sums of campaign dollars, the political polarization of the electorate or the added pressure of voter expectations that can sometimes lead to skewed justice.

As Waldman concludes from all this, “That pretty much sums it up. What a terrific system.”

Ever wonder about that system?

I offer the following, From Gordon S. Wood, The Idea of America: Reflections on the Birth of the United States, Penguin, 2011:17:

[O]nce a new idea is expressed and becomes reasonably acceptable to many people, it can spawn new and sometimes unexpected behavior. When Alexander Hamilton, in the Federalist No. 78, suggested that judges were as much agents of the people as were the members of the state legislatures…he was only trying to find a novel justification for the judicial review of legislation. But others soon picked up Hamilton’s suggestion and began running with it. Before long some polemicists were arguing that if the judges were in fact a kind of representative of the people, the maybe the people ought to elect them. And sure enough this began to happen in the Jacksonian era; today…some thirty-nine states elect their judges in one way or another. This was a development that Hamilton could never have imagined and would have been appalled by, yet he helped to produce it. In our efforts to make new behavior meaningful, we create all sorts of unanticipated consequences.

The Economist, in the days leading up to the election, told us that judges are not politicians, and should not act like them. This, too, is something Hamilton could not have foreseen. We are reminded that,

Alexis de Tocqueville, whose travels around the country coincided with the spread of judicial elections, predicted that “these innovations will, sooner or later, have disastrous results.”

“It is a view,” The Economist says, “shared by many of the judges running for office around the country.”

It is difficult to argue the point, for as is pointed out,

Electing judges is a bad idea because judges are not like politicians. It is fine for a politician to make deals with voters; to say, “Vote for me and I’ll raise the minimum wage” or “Vote for me and I’ll cut taxes.” But it is an abuse of power for a judge to promise—or even hint—that he will decide future cases on any basis other than the facts and the law. Standing for election gives judges an incentive to smile on people voters like and get tough on those they hate. That is hardly a recipe for impartiality.

Vote for me because I will jail ethnic groups you don’t like? Religious groups you don’t approve of? Your ideological opponents?

It begins to look like de Tocqueville may have been right, and that Alexander Hamilton opened up a Pandora’s Box best left unopened. Yet, the system of checks and balances that so concerned Hamilton and the other Founding Fathers, seems to be breaking down.

And given our nation’s history of cronyism, of appointing political hacks on the basis not of talent but of their party loyalty (FEMA’s Michael Brown comes to mind), can we be certain that the alternative, appointed judges, is really any better?

For more information about the pros and cons, as well as how all this came about, see PBS Frontline, Justice for Sale.

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9 Replies to “Why We Vote for Judges – and Should We?”

  1. “And given our nation’s history of cronyism, of appointing political hacks on the basis not of talent but of their party loyalty (FEMA’s Michael Brown comes to mind), can we be certain that the alternative, appointed judges, is really any better?”

    ~~~~~~

    Yes, I think that is your major, over-riding problem. The extreme political partisanship that exists in the U.S. is also fairly unique in western countries. I live next door (just a river separating me from my American neighbours) and I’m always taken aback by political ads for judges on U.S. television. Your arguments against electing judges are excellent, but your last paragraph outlines the difficulty in abolishing such a system.

    And, BTW, you are in desperate need of a Federal Elections Commission with some authority…

  2. The only thing I can think of that’s worse than electing politician judges is having elected politicians appointing judges that will “see things our way.”

  3. In my opinion, judges should be appointed by,an executive and approved by a legislative body, for a fixed term, not for life. The term should be for some odd unmber of years, so as not to be compatible with the elective cycle of either the executive or the legislative body. I’d suggest thirteen years.

  4. We have elected local judges, so when I vote, I always fire every damn one of them. There is no such thing as justice in this country. Corruption has ruin our justice system to the point where judges are bought by for profit prisons. The sad part about this i when they are caught they go unpunished, they simple get slap on wrist . Another thing did you ever try to have your day in court when comes to traffic violation? Not going to happen. The system is rigged to where it costs more money to fight it than ticket fine is.

  5. Massachusetts has judges appointed by the governor. Sometimes good. Sometimes bad. Perhaps 5% better than elected.

  6. The judges were on the voting ticket alright, but there is very limited information to make a reasonable decision.

    I think that they should be appointed for a 4 year term, not extended, not repeateable, and get out.

    Then, there is less reliance on the patrons with big bags of money buying their judging powers.

    The same thing for the supremes, they should not be appointed for life either. Maybe a one 6 year term and goodbye…

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