The question of whether magistrates within the state judiciary system should be subject to the will of the electoral process is a highly debatable and loaded issue; one of which presents two formidable positions that each present their own stockpile of legal arguments that make the entire issue all the more convoluted and inconclusive.

It can be reasonably asserted that because justices over time have made themselves “active” over the years in the realms of policy making, they willingly subject themselves to “representative politics” and should therefore be subject to the public voting process. According to the Harvard Law Review, “…in Chisom v. Roemer, the Court held that the process for electing the Louisiana Supreme Court was covered by section 2 of the Voting Rights Act of 1965, which forbids states from using election procedures that result in members of racial or language minority groups having ‘less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’ In an opinion by Justice Stevens, who later joined Justice Kennedy’s opinion for the Court in Caperton, the Court held that “the word ‘representatives’ describes the winners of representative, popular elections,” and that judges accordingly were representatives within the meaning of section 2” (Karlan, 2009). Because justices within the U.S. judiciary are widely considered to be “policy-makers”, a great concern is that judicial bias prevails in many of the case decisions handed down from justices that are not subject to the threat of election or any kind of public oversight.

One argument for the elections of state justices is that it prevents justices from “rogue” decision making purely on the basis of their particular ideologies as opposed to being predicated on impartial decision making based on the interpretation of state and federal laws. Elections further allow for candidates for select judgeships to make their appeals directly to the American voter to establish their commitment to impartiality when deciding on critical court cases. According to judicial election advocates, independence from the electorate could eventually correlate to an “independence” from Constitutional law itself. “Democratic accountability” is tantamount to the supporting argument for judicial elections and the assurances that justices impartially defend the law irrespective of their ideological positions. In support of the election process for state judiciaries, the Heritage Foundation stated, “Clashing views about the proper role of judges—including the liberal perspective, which sees judges as simply political actors making preferred policy choices in robes— means that politics will be part of the judicial selection process unless and until judges return to simply applying the law as it is written. This nation thus can either allow the public to be involved in the selection process, continue educational campaigns on the role of the courts, and provide for some accountability for rogue judges or abandon the effort to educate the public altogether and keep the politics behind closed doors…” (O’Malley, 2010).Such an argument presents the reality that politics will always be a part of the judicial process.

The question then, relies upon the conundrum of whether judicial selection or judicial election will provide the best barrier to political intervention. The supporting argument responds by saying that given the reality of inescapable politics, it is better to have a system in which the public is given a voice in the selection of its judges instead of a selection commission filled with attorneys who in and of themselves cannot escape from the “realm of political bias”. Further still, a judge that has been elected by the public could be argued to be more virtuous than an appointed justice that serves primarily at the pleasure of the executive branch and its political clouts.

Although the supporting argument for judicial elections presents strong and formidable premises, the argument against such elections has proven to be equally formidable. Contrary to the assertions of the “supporting argument” that holding elections “takes the politics out of the judiciary”, the opposing argument highlights the alleged risks of a counter-productive spike in the role of politics in the judicial process. According to Claire Lim, professor of political economics at Cornell University, “Elections are effective for selecting and retaining competent representatives only if electorates can be well-informed about candidates.In many states, judicial candidates’ party affiliation appears on the ballot. This leads voters to vote on judicial candidates solely along their party line, without considering the candidates’ quality.”

By revoking “independence” from the judiciary and subjecting them to the “campaign trail”, it is highly probable that the political affiliation associated with each candidate could predict that decisions made on critical legal issues in landmark cases would or could be incredibly partisan. According to the Missouri Law Review, “There is little historical evidence that unregulated judicial elections ensure a more accountable judiciary than political appointment systems. In the late nineteenth and twentieth centuries when judicial elections were in their early bloom, the evidence suggests that most judges were "party hacks" who owed their seats on the bench to political friends rather than voter choice” (Failinger, 2005).Because of this, electing judges could hold the potential to make judiciary panels extremely partisan, with more focus being established on the politics rather than the idealism behind Constitutional interpretation.

Allegiance to donors of judicial campaigns also presents a serious problem. According to the Missouri Law Review, judicial elections are extremely costly. For example, according to the article, “The Brennan Center's Justice at Stake Campaign report noted that in the 2000 campaign, state supreme court candidates raised a total of $45.6 million, a 100 percent increase over 1994, and 61 percent over 1998.53 On average, candidates for states' highest courts raised $430,529 each; and sixteen raised over $1 million to fund their campaigns. 54 In White, Justice O'Connor noted that the thirteen candidates competing for five seats on the Alabama Supreme Court spent an average of $1,092,076 in 2000” (Failinger, 2005). Such expenditures into a judicial campaign immediately raises the prospects that the biggest donors could have greater influences over the legal decisions of elected justices than the scrutiny of the general public in what could be essentially viewed as quid pro quo. In conjunction to this, the risk of quid pro quo also could extend to the attorneys who will then feel the pressure to engage in “pay for play” initiatives by contributing and supporting a specific justice’s campaign in order to contract favorable rulings in court.According to The DePaul Law Review, “In 2000…Lawyers and business interests accounted for forty-nine percent of all contributions to supreme court candidates” (Friedman, 2009).In essence, impartiality within the court could in effect be seen as a monolithic, political establishment that would pride its handed down decisions solely on the basis on “who has the greatest influence”, disenfranchising the very voters the election process claims to empower.

It is then no mystery that there is a seemingly preexisting stalemate within the arguments for and against elections within the state judiciary. The threat of political influence in judicial interpretation of the law is egregious, which justifies the attempts by both sides of the issue to come up with methods that eliminate as much of the politics as possible. When the two sides of the argument intersect at this “common ground” of concern, this is where I believe the supporting argument for judicial elections begin to garner more credibility.

I begin my position with analysis from the Harvard Law Review, “The Justices also all recognized the way in which judicial elections might color judges’ decision-making by creating a personal (and pecuniary) stake related to their desire to retain office” (Karlan, 2009). The reality of this could immediately put a stake in the center of the “accountability” and “impartiality” claims by the supporting argument. However, I would counter that the same bias that could exist within elected judges afraid to lose their seats on the bench also exists (and perhaps to a greater extent) within justices that are positioned by appointment, thereby putting a dent into the opposing argument for merit or virtue selection of justices.According to conservative economist Milton Friedman, during an interview with Phil Donahue, “And what does reward virtue? You think the communist commissar rewards virtue? You think a Hitler rewards virtue? You think, excuse me, if you'll pardon me, American presidents reward virtue? Do they choose their appointees on the basis of the virtue of the people appointed or on the basis of their political clout?”

This is very significant, considering that judicial impartialitycould then be argued to be virtually non-existent regardless of what method is utilized. The issue then becomes what position is more just. Would we rather have justices that are beholden to the public it represents through judicial interpretation or would we rather have justices beholden to the political clouts of the attorneys and politicians that appoint them?

Proponents of merit selections operate under the assumption that these commissions will be impartial in their selecting of judges, which is an over-step in and of itself. According to the Heritage Foundation, “…this assumption fails to take into account the underlying problem with the politicization of judicial selection: the deep disagreement regarding the proper role of the courts and judges, with one side asserting that judges should apply the law as it is written, according to its plain and original meaning (originalism), and the other asserting that judges are fundamentally political actors who should seek to rule based on preferred policy outcomes or empathy (living constitution theory) ” (O’Malley,2010).

Since this disagreement is so prevalent and far from being apolitical, it is then reasonable to suggest that the key to influencing the selection of judges is by influencing whomexactly gets a position within the commissions that select them (O’Malley, 2010). It stands to reason then that along with there being virtually no public accountability for elected justices, there is likewise no public accountability for the commissions that choose them, and whether they themselves are being impartial in the selection processes. I argue the contrary.

The argument for “merit selected” appointees is predicated on the premise that the votes of people with law degrees in the selection commissions are worth more than the average American voter. This position argues that such an infringement on democratic principle is essential to ensuring that the most “qualified” judges are selected but according to Kansas University Law Professor Stephen Ware, evidence that suchinfringement breeds more competent judges does not exist. If anything, Professor Ware suggests that justification for this argument is geared more towards legitimizing somewhat of an aristocracy. According to Professor Ware, “At the center of the Kansas system is the Supreme Court Nominating Commission; most of the members of this commission are picked in elections open to only 10,000 people, the members of the state bar. The remaining 2.8 million people in Kansas have no vote in these elections.This violates basic equality among citizens, the principle of one-person, one-vote. The current system elevates one small group and treats everyone else like second-class citizens.Kansas lawyers tend to be fine people but they’re not superheroes. They don’t deserve more power than lawyers have in any of the other 49 states. In a democracy, a lawyer’s vote should not be worth more than any other resident’s vote” (Ware, 2012).

In a representative republic like the United States, if representation of the people, by the people and for the people is the cardinal ethic upon which our government acts, the judiciary should not be exempt from this. Associate Justice Antonin Scalia of the Supreme Court of the United States acknowledged himself that judges are themselves “representatives” of sorts, though not in the same context as legislators.Indeed, neither of the methods for “choosing justices” attains their ideals, but the argument for judicial elections seems to supersede the “merit selection” opposition argument in its achievement of goals. Moreover, the threat of a judiciary not beholden to any accountability except to the political devices of individual justices present a dangerous threat to the federalist system of checks and balances, which is why the argument for judicial elections must not be ignored, as imperfect as it may be.

If impartiality is the main concern, then the burden should rest upon government to ensure that justices in the state courts be elected in non-partisan elections, taking every precaution to ensure that some level of impartial policy-making defines the justices elected but at the same time protecting the rights of the people to have a voice in choosing their “representative” government. The moment we depart from this, we tread the waters of creating an all-powerful judiciary, where justices simply act on their own volition like despots and abolish the principles of interpreting law for the purpose of protecting the Constitutional liberties of the people it defends.

Joseph Vazquez III

Bibliography:

Marie A. Failinger, Can a Good Judge Be a Good Politician - Judicial Elections from a Virtue Ethics Approach, 70 Mo. L. Rev. (2005) Available at: http://scholarship.law.missouri.edu/mlr/vol70/iss2...

Pamela S. Karlan, Electing Judges, Judging Elections and The Lessons of Caperton, 80 H. L. Rev. (2009) Available at: http://harvardlawreview.org/wp-content/uploads/pdf...

Lawrence M. Friedman, Benchmarks: Judges on Trial, Judicial Selection and Election, 58 DePaul L. Rev. 451 (2009) Available at: http://via.library.depaul.edu/law-review/vol58/iss...

Ware, S. (2012, November 29). Opinion: State’s Judge Selection Undemocratic. Lawrence Journal World. Retrieved from: http://www2.ljworld.com/news/2012/nov/29/opinion-states-judge-selection-undemocratic/?print

O’Malley, D. (2010, September 9). A Defense of the Elected Judiciary. The Heritage Foundation. Retrieved from: http://www.heritage.org/research/reports/2010/09/a...