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Are Judicial Elections Good Policy?

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Voting for Justice

Story by Alex Floyd

In 2009, judicial elections came under assault when the Supreme Court ruled in Caperton v. Massey that West Virginia Supreme Court Justice Brent Benjamin had to recuse himself from a case involving one of his election campaign donors. The case emerged after Justice Benjamin received campaign contributions from Massey Energy, a major corporation then embroiled in a fraud case, and subsequently voted in the company’s favor. In its decision, the Court ruled that the West Virginia Supreme Court must retry the case — and that Justice Benjamin must, this time, recuse himself. The example has since been cited by opponents of judicial elections as an example of “bought judges.”

However, the situation is not as problematic as it may first appear. The Court ruled the same way it had before the retrial — in favor of Massey Energy. In fact, the West Virginia Supreme Court ultimately decided that there was no bias in the way that the case had originally been handled. Despite the scandal, the situation did little to challenge the system of judicial elections that has been in place since the 19th century and has provided a notably effective and efficient structure for determining the US judiciary.

The common gripe about judicial elections is that the increasing influence of money in politics tampers with justice and produces biased outcomes. Yet the data to back up such claims is weak, if not downright misleading. Anecdotal evidence like Caperton v. Massey is often pointed to as an indictment of the entire system, even though Justice Benjamin ruled against Massey Energy 81.6 percent of the time, despite receiving contributions from the company.

Judicial campaign donations do not appear to weaken judicial impartiality nor prevent substantive legal debates. Many studies, including one just released by law professors from New York University, Duke University and the University of Chicago, have found that elected judges frequently match or outperform their appointed counterparts in metrics like opinions produced, independence and efficiency.

What’s more, judicial elections do not, as opponents often claim, damage public perceptions of the judiciary. A report released by Washington University in St. Louis Professor James Gibson revealed that elections can actually improve public perceptions of the judiciary by holding judges directly accountable to the citizenry. Most so-called merit systems, on the other hand, leave judges only indirectly accountable at best. Judicial elections solve this issue, allowing citizens to use the voting booth to hold judges accountable for corruption, political extremism or negligence on the bench.

Democratic accountability makes judicial elections an essential tool of good governance. While seating a judge is always a difficult task, judicial elections give the public a direct check on the judiciary, something nearly impossible under life appointment systems. In fact, the only accountability placed on appointed judges is a lengthy and difficult impeachment process. While this is clearly a deterrent for the most unscrupulous judges, the vast majority of the judiciary can rest easy with almost any decision it makes; impeachment has only removed eight federal judges from the bench in all of US history.

And while judicial elections may cause judges to tailor their decisions to popular opinion, the alternatives offer little promise for improvement. Just as campaign contributions to elected judges may create the potential for biased rulings, campaign contributions to politicians may influence which judge gets placed on the court under the merit system. The fact that appointed judges receive lifetime tenure further allows judges to overreach their power and hand down overtly political rulings more in line with the politicians who appointed them than with sound jurisprudence. Although both systems create the opportunity for bias, only judicial elections can effectively hold judges accountable for this bias should it become evident.

In addition, a closer look at the federal appointment system reveals another significant drawback: The system often fails to fill the entire federal bench. Partisan gridlock has stalled the appointment process in many places, leaving many vacancies across the federal judiciary. A Brookings Institution study found that the average time from nomination to confirmation has been growing over the past two decades, with the average time to confirm a district judge rising from three months under President Clinton to about 7.5 months under President Obama. The political battles that consume the appointment system are simply leaving the US judiciary with too few judges, weakening the responsiveness of the judiciary.

Proponents of judicial elections do not deny that an independent judiciary is important. Judicial elections are decidedly imperfect, but the alternatives have no better track record of halting corruption and ideological extremism. Citizens deserve to have a say in those who could potentially pass judgment on them and should therefore have the ability to hold their judiciary accountable. Merit-based systems allow party bickering and partisan ideals to dominate a judicial selection process when, instead, true democratic oversight should reign supreme.

They’re Not Just Elections.

Story by Pieter Brower

One of the cornerstones of American democracy is the notion of an independent judiciary — distinct from the legislative and the executive branches and insulated from political pressures and the popular will. Only an independent judiciary can rule consistently and impartially. But America’s judicial system may be lacking in this regard, since judicial elections undermine the judiciary’s independence.

Judicial elections have led to biased judges and opened the door to unqualified candidates. Perhaps because of this, it is a virtually unknown system outside the United States, with just two foreign countries — Switzerland and Japan — using the method. Even then, these countries use judicial elections in an extremely limited fashion. Nowhere else does the judicial election system hold as much importance as it does in the United States, where 87 percent of all state court judges face elections and 39 states elect at least some of their justices.

American judicial elections originated in the late 19th century, as progressive reformers sought to make the government more responsive to popular will. More recently, however, the American Bar Association (ABA) and many legal scholars across the country have come out against judicial elections, arguing that states should use a form of selection that prizes merit over mere popularity. There’s a lot of credibility to their criticisms — a University of Chicago report found that although elected judges write more opinions, appointed judges write opinions of better legal quality. Additionally, public opinion may not be a good basis for choosing judges in the first place. The ABA rightfully posits that judges should not necessarily heed public opinion, a view that reflects the framers’ vision of an independent judiciary.

What’s worse, the continuing relaxation of American campaign finance laws has amplified the problems with judicial elections. Today, elected judges can solicit donations from donors of all stripes, many of whom have an interest in influencing judicial decisions. In 2009, the Supreme Court’s decision in Caperton v. Massey required that judges recuse themselves in cases where a campaign donor is involved, highlighting the growing concern that a public voice in judicial appointments could make court decisions less than neutral. Correlation isn’t causation, of course, but the trend of judicial campaign donors receiving favorable verdicts could shatter the public perception of an independent judiciary. A 2009 Gallup poll found that 89 percent of those surveyed believed that campaign contributions were problematic in judicial elections.

Furthermore, it is no secret that special interests can push private donors to skew judicial races through funding. A 2014 Center for American Progress report found a significant correlation between campaign donations and favorable rulings by the North Carolina Supreme Court. According to a study conducted by the American Constitution Society for Law and Policy, the mere presence of pricey television ads can influence justices to vote against criminal appeals. The findings reinforce those of another study in Pennsylvania that found that all judges increase sentences as their elections near.

It is hard to negate the fact that elected judges depend heavily on campaign funding to maintain their positions. Spending on judicial elections has met record levels in recent years, even reaching $56 million in the 2011-2012 cycle. And while the Caperton decision offered some hope to remedy the ills of judicial elections, the ruling conflicts with the trend of limiting restrictions on judicial campaign activity — a trend that includes the case Republican Party of Minnesota v. White, which declared unconstitutional a clause prohibiting judicial candidates in Minnesota from discussing issues that could come before the Court.

In a similar move earlier this year, the Supreme Court took up a challenge to Florida’s campaign finance laws for judicial elections, prohibiting candidates from personally soliciting campaign funds — a regulation that is fairly common across the country. Given the Court’s ruling in Citizens United, it seems likely that the same five conservative justices will overturn the restrictions on First Amendment grounds, paving the way for increased spending and campaigning in judicial elections. The Citizens United of judicial elections may be on the way, and although the Caperton case is an outlier, it is not hard to imagine similar situations arising in the future.

There are admittedly problems that arise from insulating the judiciary entirely. Therefore, the best solution to the tensions between a democratic and impartial judiciary probably lies somewhere between the two extremes. Perhaps merit-based judicial systems, which are already used in several states, are the answer. In merit selection, the nominating commission generally screens applicants and selects the most qualified candidates. A political actor — usually the governor — then selects among the recommended candidates. While there are also flaws in this process, the system ensures the selection of qualified judges while still maintaining public oversight, albeit indirectly. These merit selection systems may be the only way to preserve accountability over the judiciary while still limiting the increasingly pernicious influence of money in American democracy.

About the Author

Pieter Brower '18 is a Public Policy and Hispanic Studies concentrator. He currently serves as a Managing Editor and BPR, and was formerly the Associate Content Director.

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