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COLUMNISTS
TODAY'S STORIES
25.05.2008
The Stupidity of Judicial Elections

Adam Liptak has a nice piece in today's New York Times taking a look at the practice of electing judges, which is common at the state level in the U.S. but almost unheard-of abroad. Liptak's basic conclusion is that most people seem to think judicial elections are a bad idea, since very few voters are in a position to assess the relative merits of the candidates. Alex Tabarrok also notes that one effect of judicial elections is to put out-of-state parties at a major disadvantage in cases in state courts. He quotes one West Virginia judge:

As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone's else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me.

I'm inclined to agree with Liptak and Tabarrok. I mailed in my absentee ballot last week for California's June primary for non-presidential races, and as usual I was asked to vote in two races for superior court. I'd never heard of any of the candidates, it's a nonpartisan office, and all the candidates' ballot statements are essentially identical ("Endorsed by numerous law enforcement agencies", "Volunteer youth soccer coach," etc.). In the absence of any useful information, and not wanting to spend the time needed to do real research, I voted based on what some might consider to be frivolous criteria: In one race I chose a candidate because his opponent was endorsed by our former city attorney, whom I didn't particularly like, and in the other race I voted for one candidate because his opponent's ballot statement featured a gratuitous amount of capitalization, bolding, and underlining, often in combination. (NOT a desirable judicial trait, in my view.) Other voters probably gave the races even less careful consideration.

That said, I rather like the way California handles judicial selection for the state appellate courts and Supreme Court. Judges are appointed by the governor, but then subject to periodic retention elections (where voters are asked simply, "Should John Doe be retained as a judge, yes or no?"). The practical effect is to ensure that judges keep their jobs unless they seriously offend public opinion on a high-salience issue. (As in 1986, when three liberal judges were removed for, among other things, effectively refusing to enforce the death penalty.) This strikes a reasonable balance between the competing interests of judicial independence and democratic accountability, and enhances the public prestige of the courts--defenders of the recent gay marriage decision were able to note that all four signers of the majority opinion had won retention elections by wide margins.

--Josh Patashnik

Posted: Sunday, May 25, 2008 4:55 PM with 9 comment(s)

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liberal reformer said:

Another thoughtful post, Josh. Appoinment plus a confirmatory vote. This procedure helps skirt a pork-barrel judiciary. In the state of Washington where I live, we vote for judges on the Supreme Court. The result has often not resulted in the prettiest picture. California's way is better.

May 25, 2008 6:15 PM

nbarry said:

New York also has judicial elections and the Supreme Court recently upheld as constitutional the selection of these candidates by political bosses.  Maybe, the majority of justices don't give a damn, but this method of selection is as corrupt as hell and generates conflicts of interest in cases where political considerations are involved.

May 25, 2008 10:42 PM

Rhubarbs said:

The California system is a sound compromise. (Minnesota had a similar appoint-reelect system when I last lived there.)

My own practice for dealing with elections to offices that I do not believe should be elected is simply to vote for the incumbent unless I have strong reason to wish the incumbent's removal (which has not yet happened). In open races, I vote on the party line, though it sometimes takes digging to discover the party affiliations of judicial candidates.

May 26, 2008 8:11 AM

raylward said:

On the other hand.  Electing judges allows an organized group to increase its members on the judiciary.  In Florida (Tampa Bay area), women l(and women lawyers) have been effective in recruiting and promoting the election of women judges.  Since the voters don't know the candidates, an organized group can easily tilt the election to its heavily promoted candidate.  Is that good or bad.  Depends on whether one likes the result.

May 26, 2008 9:15 AM

basman said:

In Canada we elect no judges, not a one. I find the idea of electing them strange and disconcerting, maybe just as an unreflective result of what I am used to.

May 26, 2008 11:41 AM

liberal reformer said:

Basman: Interesting post. Elites tend to be more punitive than the people at large. I am always amused by the Tribunes of the People on the left who constantly preach the need for more democracy but then recoil from a lot of its works. Majorities in most all of the western European countries favor the death penalty. If democracy had penetrated further down there, lethal injection would surely be having its day from Oslo to Brussels to Frankfurt to Milan.

May 26, 2008 2:15 PM

PointOfLaw Forum said:

Our practice of making judgeships an elected office strikes the rest of the world as bizarre if not preposterous [Liptak, Tabarrok recalling his work on bias against out-of-state litigants on which more, Josh Patashnik @ Plank] Bush Administration loses

May 26, 2008 11:21 PM

AMVHuck said:

"Other voters probably gave the races even less careful consideration."

Oh, excuse me, Josh, did it ever occur to you that you just might be the least informed, most irresponsible voter in the entire state of California, perhaps even the nation? Could be!

May 27, 2008 2:04 PM

ericad said:

I agree that electing judges (including even deciding if they should be retained) is probably best not left to the general populace, many of whom vote for President based on the person they'd rather hang out with vs. any objective or philosophical affinity.  That being said, I vote in Chicago and don't vote for any Irish judges (they've had their time, move on) and vote for Greeks (rare finds but I support my people) and most women UNLESS the IVI-IPO cheat sheet mentions that someone has been emphatically NOT endorsed by the relevant societies.  And in case AMVHuck is wondering if I am the least informed/most irresponsible voter in Illinois, I'd venture the answer is "no", just as it is with Josh. (such hostility Huck!)

May 29, 2008 3:46 PM