Justice Sandra Day O’Connor’s announcement put me in mind of one of the issues on which she spoke out following her retirement from the Court, namely the practice in many states of electing judges. In response to a business-backed campaign to promote more direct election of judges, I wrote:
I am not at all convinced that electioneering and noisy public campaigns make a good way of selecting judges. In fact, I think there’s plenty of evidence that those practices contribute to some of the most serious problems of the state courts, and specifically to some of the worst problems facing business in those courts.
I expanded on the thought here, and gathered some of the reactions here.
3 Comments
Dan Pero’s point is well taken, but it’s not the only reason to favor election. Elected justices are more likely to push back against the excessive use of force by judges and police, and in favor of needed reforms such as loser-pays; both positions which are now largely held back by bar associations, police unions, and similar well-funded lobbying groups which in effect own most governors.
The biggest thing wrong with judicial elections is not that they exist, but that the present pretense that judges are non-political prevents voters from seeing any information about their positions or the rulings they’ve made in any election information materials. As a remedy I suggest putting that information (perhaps with names redacted) online in bulk, so that political groups can review it and publish recommendations.
“Elected justices are more likely to push back against the excessive use of force by judges and police” – my experience in Texas suggests that this is not the case. It is really easy to spin such activity as ‘soft on crime’, which is frequently the death knell for a judge’s electoral chances.
There is no good system. I’ve practiced law in a merit-based selection process state, and there is as much “politics” – if not more – than in electing judges.