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Debate: Election of judges

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-*[http://www.csmonitor.com/2008/0130/p09s01-coop.html Electing Judges- with cash-Cody corliss]+*[http://www.csmonitor.com/2008/0130/p09s01-coop.html Electing Judges- with cash-Cody Corliss,January 30,2008]
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*[http://www.truthout.org/061209VA Mario Ritter. "Money, Influence and the Election of Judges". Voice of America. June 11, 2009] *[http://www.truthout.org/061209VA Mario Ritter. "Money, Influence and the Election of Judges". Voice of America. June 11, 2009]
*[http://www.lanewslink.com/archives.php?id=7215 "Editorial: Time To Appoint Judges". Shreveport Times. September 21st, 2008] *[http://www.lanewslink.com/archives.php?id=7215 "Editorial: Time To Appoint Judges". Shreveport Times. September 21st, 2008]

Revision as of 14:54, 25 June 2009

Should judges be elected?

Background and context

"background"

Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Accountability: Will elections make judges more or less accountable?

Yes

  • Elected judges are more in tune with public opinion The system of training through law schools and vocational work is elitist and prolonged, and leaves judges’ opinions at risk of being, or appearing, out of date or out of touch. Law schools have a reputation for being more liberal than the majority. Judges are often seen as lacking knowledge of recent social trends. Election means demystification and exposure to ordinary people and their concerns.
  • Voters will ensure elected judges uphold the rule of law Voters have at heart upholding the rule of law, particularly because they are interested in maintaining their individual rights. Elections will not take judges away from the rule of law. Instead, it will help keep judges in check, in line with the rule of law.
  • Elections make judiciaries more transparent. It is true that popular ‘error’ is hard to right, but elections themselves provide safer guarantees and more transparency than systems relying on appointments.
  • Elections will increase public trust in judicial system. This means that the judiciary must retain the public confidence so necessary to a properly functioning legal system.

No

  • Judges can be made accountable without elections. Judges are held to account by their ability to publish dissents, and by those who have the time and special knowledge needed to assess their capability. In some countries, such as the UK, judges can theoretically be dismissed by a vote of the legislature.
  • Many officials are appointed; why not judges as well. Public life is already run by career civil servants and unelected officials. There is no reason why the judiciary should be any different. Indeed, an elected judge may view their position as simply another step on the path of political ambition, rather than as an important public role in its own right.
  • Election of judges bows to tyranny of the majority. Without elections, the judiciary is a branch of government that is isolated away from elections, and a check is placed on the potential for a tyranny of the majority, which can occur when a majority of the population retains dominance in elections.
  • Legal rulings and rights are not subject to popular opinion. Legal decisions require a strict interpretation of law that requires in-depth legal and constitutional knowledge and training. They should not be driven by popular opinion, and yet this is precisely the notion underlying the idea of electing judges. Indeed, what safeguards are there for fundamental rights if the law is always open to populist interpretation?
  • Voters don't have enough info to pick the best judges Voters are overwhelmed with so much information, and so many candidates, they usually know little to nothing about candidates for judges. This means that the resulting choice has little to do with the merit of the candidate. Instead, it is simply a crapshoot shot in the dark from voters that just don't know enough to make a good choice.

Corruption: Do elections or appointments better avoid corruption?

Pro

  • Judges can be forced to recuse themselves in conflicts of interests. The US Supreme Court ruled in a June 2009 West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats. This is a sufficient measure to reduce the chances of corruption while maintaining judicial elections.[1]


Con

  • Elected justices are corruptly influenced by campaign funders Elected justices have to campaign for their elections. This requires substantial funding. Many funders make contributions, and promise a continuation of funding for future campaigns, only if the fundee/elected-judge upholds their interests, corporate or otherwise. Such influence is wrong and unjustified.
  • Elected judiciaries increase the influence of special interests. The election of judges opens the door to special interests supporting campaigns and subsequently "buying" influence over judges.
  • Appointing judges avoids having to regulate conflicts of interests. "Elect to appoint judges instead". York Daily Record. June 12, 2009: "the U.S. Supreme Court recently provided the perfect 'excuse': The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats. [...] If Pennsylvania used a merit selection process -- as proposed in recently introduced legislation -- we wouldn't have to worry about running afoul of that ruling and judges wouldn't have to try to figure out whether a $50 donation requires recrusal."
  • Election of judges has appearance of judges selling influence. Even if judges are not acting corruptly per se. The need to raise large sums of money for effective campaigns does create the impression that judges are selling their influence. Even the mere hint of this is damaging.


Quality: Do elections improve the quality of judges?

Pro

Con

  • Elections can unseat experienced, and seat inexperienced, judges. In general, elections tend to create a higher rate of turnover in the judiciary. This means that experienced judges are more quickly booted out of office and replaced by less experienced judges. This does not benefit democracy.
  • Judicial elections are known to produce inferior judiciaries Walter Olson. "Judicial elections: a dissenting view". Point of Law. July 17, 2008: "Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies -- in Western Europe, Japan, Canada -- as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive 'American disease' of law."

Meritocracy: Does the election of judges fit with the idea of a meritocracy?

Yes

  • Current legal hierarchy is not a meritocracy. The complex, lengthy, and costly process which constitutes current legal training does not make for a fully meritocratic system. elections would allow younger lawyers and other professionals to stand for election – and the public is fully capable of recognising the best candidates.


No

  • Merit, not money, should sway judicial elections "Electing judges-with cash". Cody Corliss. January 30,2008: "Now that a judge can be more open about his or her beliefs, money is flowing into judicial campaigns as never before. The 2006 judicial campaign season was the highest spending on record, according to Justice at Stake, a nonpartisan monitoring group. That year, business interests gave $15.3 million to judicial candidates while attorneys kicked in another $7.4 million. Third-party interest advertising accounted for another $8.5 million. One can only imagine that 2008 will be another record year.So what can we do to end the money exchange in state judicial elections? Simply put, it's time to end judicial elections on the state's highest courts."
  • Lawyers are not fully free to campaign against sitting judges. "Editorial: Time To Appoint Judges". Shreveport Times. September 21st, 2008: "Lawyers are reluctant to run against a sitting judge for obvious reasons, particularly if the would-be candidate is a courtroom attorney. [...] Of this flawed judge-'til-retirement system, one retired Missouri circuit judge, J. Miles Sweeney, said of never having to face an opponent in four elections in Greene County: 'Nobody ever had a chance to vote against me. I was never accountable.'"

Authority: Do unelected judges lack the sufficient authority and legitimacy?

Yes

  • Unelected judges lack authority need by co-equal branch of govt. Elections offer a certain amount of legitimacy. They confer the power of the people to a government's rule by and for the people. Lacking such electoral legitimacy, the judicial branch lacks authority. This is a problem in a government that demands checks and balances from co-equal branches. Indeed, in the United States, the judicial branch is considered the weakest of the three branches of government. But, should this be the case in a government established on the precepts of co-equal branches? An elected judiciary would be a more powerful judiciary, and thus provide for stronger checks and balances and stronger governance.

No

  • Judiciary is inherently weaker; should not be stronger by elections. The judiciary is almost always considered an inherently weaker branch of government due to its inherent lack of "force" and "will". This is made clear in :the American Federalist Paper #78 (1803): "The judiciary...may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two...that...the general liberty of the people can never be endangered from that quarter; I mean, so long as the judiciary remains truly distinct from both the legislative and the Executive."
  • Very few countries have judicial elections; reducing its legitimacy. Japan, Switzerland, and the United States are the only countries that hold judicial elections. The fact that it is not particularly common speaks to its lack of legitimacy internationally.

Partisanship: Can judges be elected without falling victim to partisanship?

Yes

  • Election of judges does not inherently require partisanship. The election of judges is not inherently related to any affiliation with political parties. Judges are capable of influencing political life without being party political.

No

Pro/con sources

Pro


Con

External links

Books:

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