Why We Vote for Judges – and Should We?

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.

Hrafnkell Haraldsson

Hrafnkell Haraldsson, a social liberal with leanings toward centrist politics has degrees in history and philosophy. His interests include, besides history and philosophy, human rights issues, freedom of choice, religion, and the precarious dichotomy of freedom of speech and intolerance. He brings a slightly different perspective to his writing, being that he is neither a follower of an Abrahamic faith nor an atheist but a polytheist, a modern-day Heathen who follows the customs and traditions of his Norse ancestors. He maintains his own blog, A Heathen’s Day, which deals with Heathen and Pagan matters, and Mos Maiorum Foundation www.mosmaiorum.org, dedicated to ethnic religion. He has also contributed to NewsJunkiePost, GodsOwnParty and Pagan+Politics.