Sunday, May 25, 2008

Judicial Elections and American Exceptionalism

Did you know that the United States is the only country in the world which elects a majority of its judges? Nearly 87% of state court judges are elected, and 39 states allow for judicial elections of some sort, including the election of judges to their highest Supreme Courts.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”

Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.

“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”

I've never understood why the state judiciaries don't function in much the same way as our federal judiciary. On the federal level, the president's administration selects candidates for all levels of the federal judiciary, including appointing the Attorney General and assistant U.S. attorneys, who are then confirmed (or rejected if unqualified) by the Senate. This ensures that the Executive and Legislative branches get a say in who ends up in the Judicial branch, but the lifetime appointment ensures judicial independence away from the political forces of the day.

This would be a very simple system to enact throughout the states, yet for some reason we insist on electing judges, whom we feel should "answer to" the public for their decisions. And as a result, we often end up with unqualified and untrained people rendering political-motivated judgments each time an election cycle rolls around.

Most countries put their judicial candidates through years of special schooling and batteries of tests which must be completed before you put on the robe. Here, you simply launch a political campaign and, without perhaps any judicial experience at all, you end up on the bench completely unprepared.
Says Mitchel Lasser, a law professor at Cornell, of judges in other countries,“You have people who actually know what the hell they’re doing. They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”

“The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”

Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”

Of course, we don't wish to mimic some countries, where judges are mere patsies of whatever ruling political party is in office at the moment. But in the same way our federal system protects against such a thing (federal judges can be removed via the impeachment powers of the Congress), the states could do similarly to ensure a qualified yet independent judiciary.

Judges should be held accountable for their decisions and actions on the bench, but the proper way for the people to exercise such accountability should be through elections in the Executive and Legislative branches, not the Judicial.

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