We need judges. I’m pretty sure most everyone in the United States would agree with that statement, but if you don’t, please feel free to comment below with your reasoning. Assuming, for the sake of this post, that the first statement holds true, a question arises: how do we find judges? Implicit in that question are two more specific questions: what behavior should be desired in a judge, and how can judges who will manifest that behavior be chosen? The various answers to these questions have molded the American judicial system for the past 300+ years (the first judicial system in Pennsylvania, for example, was established in 1683 by William Penn).
This post will aspire to two goals: first, to provide a brief recounting of the debate–both historical and contemporary–that surrounds the election of justices and judges in the United States and second, to conclude that, given the current methods of judicial selection, Pennsylvania’s system of electing judges should be preserved.
In regards to what behaviors should be prioritized in judges, two general demands have emerged: judicial independence and judicial accountability. Judicial independence is the notion that judges should not be influenced by anything or anyone other than the case at hand and the evidence presented in their adjudications (Newman and Isaacs). Judicial accountability is the (contradictory) notion that judges should be beholden to the people whom they are judging (Newman and Isaacs). In their extremes, these two priorities are opposite. A truly independent judiciary would ideally be comprised of one person: self-appointed and with full knowledge of U.S. case and Constitutional law, but without interest in the success of failure of individuals or the country. A truly accountable judiciary would ideally be the entirety of the people themselves, presiding over every case as one giant unit. Of course, these theories are preposterous. In practice, judicial independence and accountability are much more compatible.
In fact, as scholars largely agree on what behaviors should be sought out (I base that assertion on my failure to find any source that suggested a different basis of evaluation), the debated question has morphed to “independent of and accountable to whom?” At this point, theorists separate into two camps: those who say “independent of the people and accountable to the authorities” and those who say the opposite. People in the first camp generally advocate some form of appointment process while those in the latter favor elections.
The logic behind appointing judges is founded on the assumption that judges should not be beholden to or dependent on the general populace in their jobs. When qualified elected officials control judicial appointments, theoretically, they pick qualified candidates (or ones that represent minorities). Further, judges picked by officials are able to adjudicate cases without having the need to win the support of voters by crafting a personal image at the expense of judicial independence (Newman and Isaacs). The addresses an issue that one study from Berkeley and Loyola raised. The study found that in anticipation of an election, judges responded to criminal offenses with 10 percent longer sentences (“The trouble”). Removing the election should remove the longer sentences that result from it. Additionally, it would address the concern that judges who have to campaign will be beholden to their big donors, an undesired form of judicial accountability (Zeder).
While appointed judges aren’t directly accountable to the voter, the officials who appoint them (most frequently governors) are. Jessica Levinson, an associate clinical professor at Loyola Law School-LA, favors this indirect accountability because she feels voters are rarely informed about judicial elections and thus aren’t making educated decisions in the polling booth. In support, Levinson notes elections where incumbent judges with foreign-sounding names lost to unqualified challengers with Anglo-Saxon names.
The favored form of judicial appointment is the merit-based system, also known as the Missouri Plan, after its state of origin. In this system, a pool of judges who fulfill some set of criteria are selected by a committee. That committee then reports its findings to the governor who selects an approved judge to fill whatever vacancy is in question. Of course, the plan is dependent upon an educated committee that is as nonpartisan as possible (Newman and Isaacs).
Proponents of electing judges also champion judicial independence. However, they argue that judicial independence is best preserved when the elite don’t have a stranglehold on judges. Political leaders, they assume, are just as partisan as voters, and will also be motivated by reasons other than the quality of a given candidate. As Russell Moran, a lawyer in New York, wrote to the New York Times, in the state of Missouri (which adopted the favored “Missouri Plan”) as of 2010, 17 of the last 18 nominees that were chosen by the Judicial Commission belonged to one party.
History also lends limited support to advocates of elected judges. When electing judges gained widespread traction in the mid-to-late 19th century, new judges exercised judicial review more frequently than the judges they supplanted. Some of these judges were also the first to raise concerns about protecting minorities from majoritarian rule (Zeder). This evidence contradicts the assumption that appointed judges are better able to represent minorities.
Indeed, the assumptions that appointed judges are less susceptible to outside influence and are more likely to produce quality opinions both seem to be problematic. In a 2007 joint study, researchers from NYU, Duke, and the University of Chicago concluded that appointed judges wrote slightly higher quality opinions than elected ones, but also wrote far fewer opinions, resulting in inconclusive evidence about overall superiority. Additionally, elected judges did “not appear less independent than appointed judges” (Choi, et al). Thus, the merits of appointed judges in terms of quality and independence are less than some assume.
Given the above statistics, it seems that conclusively determining one method of judicial selection to be superior is difficult, if not impossible. Unless such evidence is presented, it may be best to err on the side of giving the people more say rather than less. Additionally, forcing judges to campaign has the beneficial effect of forcing them to meet the people over whom they have authority.
The one area that people on both sides of the debate agree on is that access to dark money in campaigns is dangerous. The 2015 judicial elections in Pennsylvania were the most expensive in history, costing around $15.8 million for three State Supreme Court races (Bishop). Most of the money spent came from outside special interest groups, not the campaigns themselves. Whether the judges themselves are elected or the people who appoint them (or the people who appoint the people who appoint them) are, more money in politics translates to greater influence for powerful people and organizations, all at the expense of the general public.
Filling judicial positions is and will continue to be a difficult issue. Given the nature of judging, it is impossible to expect judges to haves: the law isn’t explicit enough for that. If it was, no one would need judges. Given the nature of reality, the best we can hope for are judges who listen closely, think carefully, and read fastidiously. In fact, it would probably be better if we all do that, too.
Does anyone else have insight into judicial election/appointment procedure? Do you disagree with me? Do you agree with me? How can we improve our judicial system?Let the world know! Comment below.
Bishop, Tyler. “The Most Expensive Judicial Election in U.S. History.” The Atlantic, 10 Nov. 2015, https://www.theatlantic.com/politics/archive/2015/11/the-most-expensive-judicial-election-in-us-history/415140/.
Bonneau, Chris W. “Why we should keep judicial elections.” The Washington Post, 26 May 2011, https://www.washingtonpost.com/opinions/why-we-should-keep-judicial-elections/2011/05/26/AGt08HCH_story.html?noredirect=on&utm_term=.66e672ce9787.
Choi, Stephen J, et al. Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary, University of Chicago Law & Economics 2nd Annual Conference on Empirical Legal Studies Paper, 23 Aug 2007. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008989.
Levinson, Jessica A. “Why voters shouldn’t be electing judges.” Las Angeles Times, 8 May 2014, http://www.latimes.com/opinion/op-ed/la-oe-levinson-end-judicial-elections-20140509-story.html.
Moran, Russell F. “What Is the Best Way to Choose Judges?” The New York Times, 30 May 2010, https://www.nytimes.com/2010/05/31/opinion/lweb31judge.html.
Nelson, Caleb. “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America.” The American Journal of Legal History, April 1993. PBS Frontline, https://www.pbs.org/wgbh/pages/frontline/shows/justice/howdid/nelson.html.
Newman, Sandra Schultz and Daniel Mark Isaacs. “Historical Overview of the Judicial Selection Process in the United States: Is the Electoral System in Pennsylvania Unjustified.” Villanova Law Review, vol 49, issue 1, Jan. 2004. https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1251&context=vlr.
“The trouble with electing judges.” The Economist, 23 Aug. 2014, https://www.economist.com/united-states/2014/08/23/the-trouble-with-electing-judges.
Zeder, Jeri. “Shugerman explores the history of judicial selection in the U.S.” Harvard Law Today, 1 July 2012, https://today.law.harvard.edu/book-review/in-new-book-shugerman-explores-the-history-of-judicial-selection-in-the-u-s/#.