Raising the Bar

When American founding father Elbridge Gerry said, “the evils we experience flow from the excess of democracy,” he probably didn’t have judicial elections in mind. But the uniquely American and singularly deleterious practice of determining judges’ tenures through popular vote perfectly illustrates the danger of over-democratization. About 80 percent of people believe in the ideal of the US judicial election, which is partly why 90 percent of non-federal judges participate in some form of election. While these elections are admirable in theory, unfortunately, in practice, they are harmful to law, justice, and, ironically, to democracy itself.

The origin of judicial elections can be traced back to the 1800s—the combination of the elevation of “the people” as a mythic, infallible collective under President Andrew Jackson, and the fiscal overreach of state governments led to strong, unified backlash against legislatures across the nation. Localities overspent on large infrastructure projects, resulting in a lack of funding to help the destitute when the economic crisis of 1837 struck. One way to check legislatures’ freedom to tax and spend however they wished was to separate the nomination process of judges from the other branches of government and grant the process to the people. Many lawyers predicted that this new system would increase the power of party politics and keep judges from making correct rulings, but the will of the populace overpowered dissent. The failure of state legislatures coincided with the crest of Jacksonian populist belief in the people so well that by the start of the Civil War, almost 75 percent of states had amended their constitutions to institute judicial elections.

The judicial system will never be perfect, but that doesn’t mean it shouldn’t be held to its founding ideals: to distribute justice, uphold the rights of the people, and protect minorities from tyranny of the majority. All of these prerogatives are undermined by judicial elections. Through an election process, judges are incentivized to focus not on the law, but on the opinion of the people. Even worse, judges must commit their time to campaigning and fundraising instead of to judicial affairs. The popular deficit of information concerning the ability of judges leads to a dependence on advertisement and fundraising. After Citizens United—a Supreme Court decision in which the long-standing federal limits on corporate expenditures in elections was struck downthis dependence has become even more dangerous. Judges can see clearly who gave them money, and whom they need to rule in favor of in order to keep their jobs. Elections necessarily make the application of the law uneven.

"Judges who want to keep their jobs must not only consider not just the facts of a ruling, but also its optics."

Additionally, under a judicial election model, judges must explicitly think about how the general public might view the defendants under trial. This includes considering the public’s many prejudices. In 2008, Wisconsin’s first Black justice, Louis Butler, was targeted by a series of ads putting his face next to the face of a Black man convicted of rape. This smear campaign, which was funded by a group of businesses against which Butler recently ruled, implied that Butler had effectively exonerated Mitchell, the convicted man. Butler went on to lose his election to an opponent who barely had any experience with the law. Factual inaccuracies of the ad aside, the incident served as a signal that under the US’s judicial election model, judges who want to keep their jobs must not only consider not just the facts of a ruling, but also its optics.

But there is a better way. Merit selection—in which a commission of lawyers and former judges gives the governor names of supremely qualified candidates—has been gaining traction in many states. This practice, which is common around the world, has been found to be the most far way to nominate judges. Merit selection insulates judges from the tyranny of the majority, puts nomination responsibility on those who can understand how judicial candidates have ruled in the past, and has been shown to increase the number of minorities and women on the bench. Of course, merit selection has its flaws: The selection of the members of a commission is susceptible to politicization, the process can perpetuate a system of cronyism and legal insiders, and the concept feels explicitly undemocratic. While these claims are valid, they are insufficient to obstruct a call for change—merit selection is still far preferable to our current system, especially considering it is the only alternative model that has been tested and shown to be effective.

That people are able to participate in their government and have the power to choose who represents them is a virtue that should never be extinguished. But the voice of the people is already included in the selection of judges, since elected officials typically have some say in the nominating process. At the end of the day, it is the job of the judiciary to strive for impartial justice, and judicial elections run contrary to this ideal.

Photo: “Miles Ehrlich, Judge”

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