How should we pick judges?
The fight over judicial elections
On Tuesday, I attended a conference put on by the Aspen Institute and Georgetown Law on the topic of judicial selection. In light of two recent Supreme Court cases, Caperton v. Massey Coal (in which the court held that judges should recuse themselves from cases involving donors to their campaigns) and Citizens United v. FEC (in which the court ruled that corporations and unions may spend without restraint to influence elections), debate has been heating up about the effect of elections on the judiciary.
There were a number of interesting questions raised at the conference, which featured a wide range of authorities on the subject, including several state supreme court justices, politicians, legal scholars, and the keynote speaker, Sandra Day O’Connor.
The broad question is, of course, whether we should subject judges to popular election in the first place. It was pointed out that the public tends to hold two strong but contradictory views on the subject: First, that judges are often corrupted by political and financial forces; and second, that popular elections are necessary to hold them accountable. But these elections, so it was suggested, are the problem, not the solution.
Judicial elections are often shams on several levels. Even as voters demand them, they rarely vote in them, and when they do, it is commonly without any information on the candidates. That is if it’s even a contested seat, which is rather rare. One former justice asserted that many voters simply pick the more “trustworthy” name, recalling an election in Texas in which Democrats swept all the seats except for four where the candidates had non-white surnames.
In addition to all this (and so far, most of these complaints could unfortunately be leveled at congressional elections as well), there’s the corrupting influence of the money and politics involved in elections. Do we really want judges out there raising money and taking stances on political issues? Another justice said that in the South, judges up for re-election have to prove their bona fides as hunters and Christians if they wanted to win. Studies show that in the period leading up to an election, judges’ tendencies change – particularly in criminal cases. No issue rallies public concern greater than the perceived weakness or strength of a judge on crime, and so judges take care to appear “tough” when faced with public assessment.
Why elect them, then? The principal argument in favor is simple – democratic accountability. Americans don’t want a judicial branch run amok, full of activist judges and accountable only other lawyers. Elections keep the judiciary on track with the concerns of citizens and keep rogue judges in check. Most judges apparently don’t see things this way. The theme repeated throughout the conference and by Justice O’Connor herself was this – “Our constituency is the LAW.”
In other words, judges are responsible to the law, not to democratic oversight. This fits well with the objective, limited jurisprudential role symbolized by Chief Justice John Roberts in the “We just call balls and strikes” metaphor. The judiciary isn’t about values, politics, ideologies, or popularity. It’s about the pragmatic and technical parsing of legal minutiae. In some sense, the judges’ case for independence rests on this being true – if it’s not, and judges are value-laden beings, perhaps democratic accountability is necessary.
My own sense is that while a great many decisions are highly “technical” in nature, the relevance of philosophy to legal reasoning is absolutely central. The fact is that on many issues, and at least at the Supreme Court level, you CAN predict how individual justices will rule. History has shown consistent liberal and conservative blocs, and the occasional “swing vote” for good measure. If values didn’t matter, this wouldn’t be the case.
Does this invalidate the arguments for a merit-based selection system, as opposed to popular elections? Maybe not. But I think it’s important that we not delude ourselves about the “value-neutrality” of judges.
-Colin
Related posts:
- Montana allows assisted suicide
- Rookie rules
- Democracy & judicial review
- The originality of originalism
- The people’s court
ShareComments
Leave a Reply
