Electing judges is a bad idea
Slate has a good article out that describes and criticizes recent efforts to replace the merit selection of judges in many states with partisan elections.
It’s no secret that many chambers of commerce and trade associations and their foes, plaintiffs’ attorneys and unions, have become the Itchy and Scratchy of judicial campaigns, willing to do whatever it takes to prevail. Since 2000, these rivals have spent millions to elect judges that they hope will rule their way, smashing funding records in at least 15 states. (As an Ohio AFL-CIO official put it: “We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.”) In the last few election cycles, businesses have outspent the other side and won more often than not. But the specter of judges chasing after money unnerves the public: three in four Americans believe campaign cash affects courtroom decisions, according to a bipartisan poll that my organization, Justice at Stake, commissioned. The latest John Grisham thriller casts a toxic tycoon buying a court race just to win a case.
According to Wikipedia, the judges of 23 state supreme courts are chosen by the voters in elections; seven of those states have partisan elections and the other 16 have nonpartisan elections (often just meaning that the candidate’s political party is not listed on the ballot). In five states supreme court judges are elected by members of the legislature; eight states use gubernatorial appointments, with confirmation by one or more houses of the legislature and/or a retention election; and 14 states use the Missouri plan or a modified version thereof. The Missouri Plan involves a nominating commission which submits the names of several qualified candidates for the governor to select from. The appointee then must then face a retention election.
If a judge is well qualified, retention elections usually result in no campaigning or fundraising and he or she is typically retained in office with 85-90% of the vote. However, in the event of an unsuitable judge the public can organize a campaign against him or her and seek to oust the jurist. Even the risk of this happening could embarrass the governor, hopefully providing another incentive to choose a well qualified judge and not a partisan hack or lackey.
While okay with retention elections, retired Associate Justice of the Supreme Court Sandra Day O’Connor has recently been speaking out in opposition to contested judicial elections. She has argued that the presence of money and special interests in elections, even when they do not interfere with the administration of justice, can undermine public confidence in judges, which is vitally needed in order for judges to be effective. “Our gavels aren’t that big and we can’t swing them that hard,” she said. Watch her briefly discussing the matter here and here, where she calls it the worst thing about how we select our judges.
Those jurisdictions that have recently opposed efforts to abandon merit selection for contested elections have made good decisions. Electing judges is a bad idea, as are confirmation hearings; but that’s another issue.