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Should Judges be Elected or Appointed

Introduction

There are three different methods of choosing judges in this country. The first is the appointment method, in which the executive of the state nominates an individual to become a judge, and (usually) the state senate must confirm the nominee before he or she takes office. This is the method followed by the federal government (as mandated by the United States Constitution), and by eleven states.
The second method is known as “retention elections,” in which the executive will appoint a judge to the bench, and then after a certain term, voters are asked whether or not they want to retain the judge. The judge is the only candidate placed on the ballot, and the voters simply vote yes or no as to whether the judge should serve another term. If the judge is voted out of office, the governor will appoint another judge to begin the next term. Seventeen states use the retention election system for at least some of their judges.
Finally, there are “competitive elections,” in which judges run for their seat in more or less the same way that other elected officials run for office: they are nominated by a party (usually through a primary election), and then they run against a nominee from the other party in the general election. If elected, they serve their term and then must run for re-election against another challenger. The remaining twenty-two states choose their judges through the competitive election system.
Choosing judges through popular election is a controversial proposition. The United States in unique among all developed countries in electing its judges. Many judges and scholars, most recently former Supreme Court Justice Sandra Day O’Connor , have campaigned to eliminate elections for judges. However, polls show that Americans overwhelmingly support the idea of electing their judges, with anywhere from 67%-80% voicing their approval of the system.

History

How did the different states end up with such an unusual—and inconsistent—method of choosing their judges? The answer has a lot to do with the rather schizophrenic history of judicial selection in our country. In colonial times, judges were either chosen by legislative election, appointed by the (Royal) governor, or nominated by the governor and confirmed by the legislature of the state. This latter method—what we now refer to as merit selection—was codified in the Federal Constitution as the method of selecting all Article III federal judges, and was also adopted by the first twenty-nine states that entered the union.
Around the beginning of the nineteenth century, selection by appointment became more and more controversial, for three reasons. First, the election of Thomas Jefferson heralded the arrival of a new, more democratic type of politics, one in which the people—rather than the elites—had a more direct say in how their country was run and who was running it. Allowing governors to choose their own judges ran contrary to the movement of Jeffersonian Democracy. Second, many of the judges being appointed were unqualified for the position as governors would use the appointments as a way to reward loyal party members or others to whom they owed political favors. Voters, it was argued, would choose better quality judges than the system of patronage that “merit selection” had become. And finally, reformers argued that judges—as their own independent branch of government—should derive their power and their legitimacy directly from the voters, and not be dependent upon the other two branches. In 1812, Georgia became the first state to switch from merit selection to judicial elections, and ultimately twenty out of the original twenty-nine states also made the switch. New states which joined the union followed the same pattern: every state from Wisconsin (admitted in 1848) through Arizona (admitted in 1912) opted for judicial elections.
As the twentieth century began, however, criticisms of judicial elections began to build. The country was becoming bigger and more anonymous; voters no longer knew the names of the judicial candidates on the ballot. Party affiliation was becoming more and more significant, and voters were reduced to simply voting for judges along party lines—thus, judges were effectively chosen by party bosses, a process which was hardly conducive to creating a quality judiciary. Some states tried to combat this development by instituting “non-partisan elections,” in which judicial candidates appeared on the ballot without any party affiliation. As might be expected, this solution—which essentially meant giving the voters even less information about the candidates for whom they were voting—did not improve the situation, as irrelevant factors such as ballot position became even more significant in deciding the outcome of the elections.
In the 1940’s, some states began experimenting with retention elections—known as “merit selection” as a compromise between appointments and competitive elections. Under this plan, nominees were screened by a panel of experts, who then presented two or three possible candidates to the governor. The governor would select an individual from the list, who would then need to be confirmed by the legislature. The judge would serve a fixed term and then run in a retention election. This method was adopted by twenty states in the 1970s, and—as noted above—it is still the method used by seventeen states. However it did not solve the fundamental problem of judicial elections: the lack of information on the part of the voters about the candidates that they were meant to be evaluating. As a result, incumbents in retention elections are nearly always retained, and in reality voters do not act as any real check on the judge’s power.

Arguments in favor of electing judges

Supporters of judicial elections still cite two of the original arguments from the early 19th century: first, that the judiciary deserves (and requires) independence from the other two branches, and second, that in a democratic society, government officials who wield this amount of power should be chosen by—and answerable to—the electorate. The third justification—that judicial elections result in higher quality candidates—is generally no longer used, probably because in modern times the appointment method rarely leads to the kind of patronage system that was so common centuries ago.
Supporters of judicial elections essentially argue that judges are in fact politicians—they make policy decisions which affect every American, and in a democracy those policy decisions—and the people who make them—should be reviewed by the electorate. Under this argument, judicial campaigns are an opportunity to have a serious debate about important issues—from the scope of government power to the reach of anti-discrimination laws to the administration of criminal justice policy.

Arguments opposed to electing judges

Opponents of judicial elections cite three primary objections. The first objection is that voters are simply unqualified to choose their own judges. Most voters know next to nothing about the judicial candidates on the ballot, and it is difficult to learn how well a judge is doing his or her job. A judge is different from most other government officials: his or her qualifications are much harder for a lay person to evaluate.
A second objection is the appearance of impropriety. Judges who are campaigning must raise money, and most of that money comes from the lawyers who practice in front of them or the companies and special interests who have cases that will be heard by them. Even if judges are in fact able to ignore past campaign donations (or the possibility of future ones) when they decide cases, the image of judges presiding over cases while their campaign committee solicits money from the attorneys and parties who appear in front of them creates a bad impression of the legal system. A recent poll showed that 75% of Americans believed that campaign contributions to judges affected the outcome of cases—and that 25% of judges agreed. And a recent study has shown that the amount of money being spent on judicial elections is increasing at an accelerated rate: spending on state court elections reached nearly $207 million in 2000-2009, compared with only $83 million in the preceding decade. (For more information about money in judicial elections, see “Campaign Funding” <background_4_campaign_funding.php> in “Background Information.”)
Finally, opponents of judicial election argue that these elections tend to politicize the judiciary: judges end up deciding cases based on political calculations rather than legal arguments. For example, a judge who is sentencing a convicted criminal may truly believe that under the law the criminal deserves only probation and drug treatment, but will worry that a lenient sentence will be used against her in the upcoming election. Or a judge evaluating the constitutionality of an affirmative action program or an abortion law will decide the case based on the most recent opinion polls rather than simply applying the law. While it may be appropriate for legislators, governors, and even Presidents to consider the will of the majority in making decisions, judges should be immune to political pressure and indifferent as to the political fallout of their decisions. If the judge must constantly worry about how the electorate (most of whom are not trained lawyers) will perceive her decisions, her ability to make decisions based on neutral legal principles will be compromised.

Conclusion

The debate about whether to elect judges will continue for decades. In the end, the question really centers on the job we believe judges are doing. Are they merely legal experts who interpret statutes, regulations, and prior case law and reach decisions by applying their expertise? Or are they essentially policymakers who allow their own ideology and political leanings to influence the decisions they make, from how long they sentence a convicted criminal to whether to strike down a statute as unconstitutional?
This website does not take a position in the debate between electing and appointing judges. Instead, it acknowledges the reality of judicial elections in this country: a majority of judges in this country are selected by voters, and given the broad support for judicial elections, that fact is not likely to change anytime soon. Given these two facts, this website attempts to inform voters about the judicial candidates that are running for office. In the next commentary <commentary_2_election_criteria>, we discuss the type of information that voters should be provided with in order to make this decision.


Choose Your Judges is a non-partisan organization dedicated to increasing voter awareness in judicial elections. If you have any comments or feedback about the site, please let us know.