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Debate: Election of judges

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 +*'''Electing judges hikes corruption''' [http://www.philly.com/dailynews/columnists/john_baer/20090520_John_Baer__Time_to_end_electing_judges.html "Time to end electing judges".By John Baer,Philadelphia Daily News May 20, 2009]:"You must have heard about the local judges in Wilkes-Barre busted for taking bribes in exchange for putting kids in juvey jails. Or the state judge from Erie just sentenced to prison for insurance fraud. Or the Philly judge who, while running for a state court last election, also was running a real-estate business out of his chambers. All elected by the voters.First of all, it's a crapshoot. Nobody's heard of these nominated candidates. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.
 +Pittsburgh lawyer Barbara Ernsberger, for example, twice lost races for Allegheny County judge and is the only statewide candidate "not recommended" by the state bar's Judicial Evaluation Commission. I figured she must have murdered someone since the bar's pretty generous in its recommendations. Turns out the commission said she lacks experience and judicial temperament.
 +But she's a female from western Pennsylvania, two advantages in judicial races, and second on a ballot of six Democrats vying for two Commonwealth Court seats. History says she has a good chance and late last night, with 79.2 percent of the statewide vote counted, she was running first in the field of six.Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.Just the possibility that it will is enough to diminish faith in our courts."
 + 
*'''[[Argument: Elected justices are corruptly influenced by campaign funders| 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. *'''[[Argument: Elected justices are corruptly influenced by campaign funders| 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.

Revision as of 04:24, 26 June 2009

Should judges be elected?

Background and context

The election of judges has been a highly contentious issue for years. While most countries do not have judicial elections, prominent exceptions exist, including the United States, Japan, and Switzerland. In the United States, while Supreme Court justices are appointed without elections, many states within the union elect their high court judges.
At all levels of government, the questions surrounding this debate remain fairly constant:
Is the appointment of judges sufficiently democratic and are elected judges sufficiently accountable, or are elections necessary for this purpose? Is the appointment and confirmation of judges by elected officials sufficiently democratic? Are elected judges more susceptible to catering to campaign funders and special interests, and are they at risk of conflicts of interests in their rulings? Can these potential pitfalls be regulated - while maintaining elections - through, for example, the mandatory recusal of judges in cases where conflicts of interests may arise? Or, is this too much of a regulatory hassle? Does the potential of conflicts of interests with elected judges jeopardize the legitimacy of judicial rulings? Should judges generally be insulated from the election and campaign processes, for purposes of keeping them focused on the law and court cases? Is such insulation from politics important in maintaining an independent judiciary that is more capable of checking the other branches of government? Are voters capable of electing qualified and possibly superior judges, or are they prone to elect less qualified ones? Overall, how does the importance of having high officials directly accountable to the people weigh against the potential costs surrounding the election judges? Overall, is the election of judges a good idea?

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

  • Elected judges wrongly interpret public opinion over the law Legal decisions require a strict interpretation of law. It should not be driven by popular opinion. Yet, this is precisely the notion underlying the idea of electing judges; that they should be accountable to and follow on some level public opinion. This diverges from basic judicial principles.
  • 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.
  • 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.
  • 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.
  • Judges are appointed/confirmed by elected officials, democratically. Judges are appointed and confirmed by elected officials, which means that they are democratically appointed, albeit indirectly, via the people's elected represantives. This is common and appropriate in a republic, that some individuals are not directly elected, but whom are democratically accountable one-step-removed. Appointed judges, therefore, are not removed from the election process and the people's judgement; they are at arms length to the democratic, electoral process.

Corruption: Do elections or appointments better avoid corruption?

Pro

  • Conflicts of interests in elect judges can be regulated sufficiently. 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]
Adam Liptak. "Looking Anew at Campaign Cash and Elected Judges". New York Times. January 29, 2008: "you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person's case."
  • Correlation b/w interests of donors and judges doesn't prove corruption. Some have tried to demonstrate a correlation between the interests of donors to the election campaigns of judges and the ultimate decisions of those judges. The idea behind these studies is that such a correlation demonstrates a tendency for judges to be biased or corrupted in favor of the views of their funders. Yet, such a conclusion is hard to prove. Donors are only likely to give money to judges that demonstrate a likelihood, irrespective of the money, to make decisions according to a certain philosophy that correlates to their own and that is within their own interests. The direction of the causality is important to recognize. Donors are giving money to those that are likely to uphold their interests; judges are not bending their judicial philosophies and decisions to cador to the interests of donors. Or, at least, a correlation between the interests of donors and the decisions of judges can be explained by either explanation and possibly both, but to conclude that it proves that judges are catering to donors interests."
  • Appointing judges is even more prone to corruption judge elections. The appointment of judges can be done corruptly, in which a judge is appointed based solely on a close relationship, or because their is some promise of financial reward for making the appointment. And, after the election, there is a risk that a judge will pass biased judgement in favor of the one that appointed them, as a way of compensating them for the appointment. This is of at least equal concern compared to the possibility of corruption surrounding elections, and judgments later passed in favor of campaign donors. What may make elections less potentially corrupting is the fact that the process of selecting the judge (an election) is much less likely to be biased or corrupt, as compared to an appointment by one individual.
  • Electing judges has the appearance of public legitimacy. While it may be true that elections can create the appearance of conflicts of interests and corruption, is it not also true that appointments can create the appearance of corruption between the appointer and appointee? In this way, the two may be equivalent. But, elections have the appearance of public approval and legitimacy through the process of the selection. Elections, therefore, probably carry the greater appearance of legitimacy in the public eye. As far as upholding confidence in the judicial system, therefore, elections are probably superior.


Con

  • Electing judges hikes corruption "Time to end electing judges".By John Baer,Philadelphia Daily News May 20, 2009:"You must have heard about the local judges in Wilkes-Barre busted for taking bribes in exchange for putting kids in juvey jails. Or the state judge from Erie just sentenced to prison for insurance fraud. Or the Philly judge who, while running for a state court last election, also was running a real-estate business out of his chambers. All elected by the voters.First of all, it's a crapshoot. Nobody's heard of these nominated candidates. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.

Pittsburgh lawyer Barbara Ernsberger, for example, twice lost races for Allegheny County judge and is the only statewide candidate "not recommended" by the state bar's Judicial Evaluation Commission. I figured she must have murdered someone since the bar's pretty generous in its recommendations. Turns out the commission said she lacks experience and judicial temperament. But she's a female from western Pennsylvania, two advantages in judicial races, and second on a ballot of six Democrats vying for two Commonwealth Court seats. History says she has a good chance and late last night, with 79.2 percent of the statewide vote counted, she was running first in the field of six.Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.Just the possibility that it will is enough to diminish faith in our courts."


  • 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.
  • Donors influence judges' decisions; not issue of common philosophy The statistics demonstrate a clear tendency of judges to shift their positions in favor of their campaign donors. These statistics show the causality is of judges being biased in favor of their donors' positions, not simply of donors giving money to judges of a similar judicial philosophy.
  • 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.


Checks and balances: Do elected judiciaries better uphold checks and balances?

Pro

  • Unelected judiciaries are prone to recklessly expanding their powers. Thomas Jefferson: "the germ of dissolution of our federal government is in the Constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one."[2]


Con

Quality: Do elections improve the quality of judges?

Pro

  • It is up to the people to decide which judges "merit" election. It is presumptuous to conclude that the electorate is ill-qualified to determine the qualifications and merit of prospective judges and make appropriate selections based on their collective judgement of merit. Should we conclude that a single governor is more qualified to make such a judgement of merit? This is a highly presumptuous proposition.
  • Screening can help ensure judicial candidates have sufficient merit. Some have proposed a kind of hybrid system in which judicial elections exist, but in which a pre-screening process ensures that all candidates appropriately qualified to become a judge. This maintains the ability of voters to choose based on their best judgement, but also ensures against instances in which wholly unqualified judges are elected to the bench. This, along with other possible systems, demonstrate that it is unnecessary to entirely rid the system of elections. Elections can be maintained, while various mechanisms can be worked into place that check against any of the difficulties they may produce.

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 meant to be 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.
  • Appointed judges are identified with the party of the appointer. While some complain elections would make the judiciary partisan in nature, this seems to forget that the appointment of judges is partisan with the appointee typically carrying the banner of the appointers party. In other words, with elections or appointments, there is no getting away from some partisanship.


No

  • Appointment of judges helps check partisanship in the judiciary. "Electing judges-with cash". Cody Corliss. January 30, 2008: "The most promising example of selection comes from Missouri. There, a diverse nonpartisan nominating commission selects and forwards the three best candidates to the governor. The governor then chooses from that slate. The judge serves for a trial period and the public then votes in a retention election. If the judge is retained, he or she then serves for a full term.The Missouri method isn't perfect, but it's far better than the interest-group-based money free-for-alls permeating state judicial elections."
  • Appointed judges don't have to adopt party-positions for elections. While it is true that politicians usually appoint judges that are similar to their own politics, once appointed, judges are not required or pressured or accountable to any constituents to uphold party politics. This is the key difference between elected and appointed judges. Elected judges are forced to adopt party positions in order to get re-elected in the next election. Appointed judges do not have this pressure, so are free to interpret the law independent of party politics.
  • Elected judges are forced to involve themselves in political machines. Dirk Olin. "Judicial Selection: Does Any Method Work?". Judiciary Reports. April 9th, 2008: "Electing judges puts enormous control into the hands of a few party leaders, who (by definition) are unmitigated whores. The political process of becoming a party nominee reflects the worst of all worlds, internal favoritism by paying off political debts or favors with a judicial nomination without regard to merit, or even basic competence. Licking envelopes for a party boss is not a primary qualification for being a judge. It is, however, for being a judicial nominee."


Pro/con sources

Pro


Con

External links

Books:

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