What Information Should Voters Use When Choosing Judges
Imagine that there is an upcoming gubernatorial, presidential, or legislative election. You have the ability to give every voter a fact sheet about each candidate, and your goal is to give them as much information as you can in a non-partisan, neutral format, so that each voter can make an informed decision based on his or her preferences. This task would probably not be too difficult. You would have to pick and choose the top five or six issues that you think are important (or, more accurately, that you think would be important to the voter)—whether they are taxes, education, international relations, gay marriage, etc. In addition, you would probably include some information about each candidate’s background and prior political experience. But there would be little controversy about what kind of information you should transmit to the voter, and the information would be relatively easy to gather: incumbents will have clear voting records on most of these issues, and every candidate will have made public statements on these issues in speeches, in their campaign literature, or in response to questions from the media
Now imagine that you have been given the same task in an upcoming judicial election. What information would you provide to the voters? And how would you gather that information? Both of these questions are far more challenging for judicial elections than elections for a legislative or executive office. In this Commentary, we address the first question: what sort of information should voters use in deciding whom to vote for? In the next Commentary <commentary_3_website_criteria.php>, we will discuss how this website has gathered the relevant information and how it is presented to the voters.
I. How do voters currently decide whom to vote for in judicial elections?
Voters in judicial elections know almost nothing about the candidates on the ballot, and many of them respond by simply not voting in judicial elections at all; approximately 25% of voters who go to the polls do not cast any vote in the judicial contests.
Those who do vote in judicial elections do not appear to be better informed than those who abstain. Approximately 80% of the electorate cannot even identify any candidates for judicial office. 1 Thus, the vast majority of these voters base their decision on information from the ballot itself.2 Depending on the state, this may or may not include party affiliation, incumbency, or area of residence. When these are included on the ballot, they have each been found to have a strong influence on voters’ decisions.3 Name recognition also has a strong influence4, as do the assumptions voters make about the candidate based on the name of the judge (e.g., the candidate is a woman or Jewish or of Irish descent).5
Unsurprisingly (and disturbingly), this vacuum of information is being filled—at an ever increasing pace—by misleading attack ads which distort a candidate’s record and/or focus on one specific case in a judge’s career (for example, a criminal case in which a defendant was released on bail and subsequently committed another crime, or a personal injury case in which the judge ruled in favor of a large corporation instead of a sympathetic plaintiff). Frequently, the judge had no discretion in making the controversial decision, but the sensationalist nature of the case still has its intended effect on the electorate. As one commentator noted, voters who do pay attention to the judicial election contest frequently find themselves living in “a dark world of abused children, freed rapists, evil corporations, and greedy trial attorneys”6
In some cases, a judge’s decision in the area of abortion, the death penalty, or gay rights can unintentionally transform his or her re-election campaign into a minor skirmish of the culture war. Special interest groups (frequently from out of state) will pour money into a campaign to defeat or re-elect the judge based on his or her “values.” Although moral values are obviously important to many voters, the amount of money spent by these special interest groups tends to over-emphasize these issues, which represent only a small fraction of the cases that a judge will decide in his or her career.
II. What information should be provided to voters?
Although there is a widespread consensus that voters do not get enough information about whom to vote for in judicial elections, there is very little discussion about what kind of information the electorate should receive when voting for judges. Most of the existing evaluative criteria are designed for jurisdictions where judges are appointed, not elected. For example, the United State Senate Judicial Nominations Commission for the State of Ohio seeks out and interviews candidates for federal judgeships who are ultimately nominated by the President and confirmed by Congress. The Commission sets out the following twelve criteria for evaluating judicial candidates: legal ability, administrative ability, communication skills, decisiveness, diligence, diversity, trial experience, impartiality, integrity, reputation, social awareness, and temperament.7 Members of the Commission, who are likely familiar with the candidates’ characters and records, and who have the time and ability to conduct interviews of each candidate and his or her colleagues, have a good chance of determining how each candidate meets these criteria. But the average voter in a state judicial election will have no way of independently evaluating any of these qualifications.
Even when organizations seek to provide criteria for state judicial elections, the results are disappointing. The American Bar Association has recommended the following eight criteria for evaluating candidates for state judicial office: integrity; legal knowledge and ability; professional experience; judicial temperament; diligence; health; financial responsibility; and public service.8 A few of these are somewhat puzzling—such as “health” and “financial responsibility”—and at any rate, it is unclear how the average voter would be able to evaluate a candidate on almost any of these grounds.
Thus, in building a list of what information to provide to voters, we must essentially start from scratch. Broadly speaking, there are five different types of information: educational and professional background, endorsements by neutral organizations, endorsements by policy-specific organizations, judicial philosophy, and prior voting record on cases.
A. Prior experience
A judge’s prior educational and professional experiences are certainly relevant qualifications for a voter to consider. They also have the added benefit of being relatively easy for lay voters to understand—how long a candidate has already served as a judge; how long they practiced law prior to that time; whether they worked for a prosecutor’s office or a large law firm; and so on. Unfortunately, the backgrounds of most judicial candidates are relatively similar to one another—there is very little that stands out as unusual or extraordinary in any of the candidates’ prior education or work experience. Furthermore, what differences do exist will tell a voter very little about what kind of judge the candidate will end up being if elected. Certainly it is a fair assumption that prior judicial experience will make a judge more qualified to continue serving on the bench, and perhaps (but only perhaps) a voter can learn something about a candidate’s potential decisions based on whether the candidate worked as a prosecutor or a defense attorney. Overall, however, this background information is not especially helpful.9
One (perhaps) surprising aspect about judicial candidates—and indeed, most state appellate court judges—is the types of law schools they attended. Although these men and women are at the top of their profession, it is rare to find a judge that went to one of the so-called “elite” law schools. In fact, of the 44 candidates for appellate judges in Ohio in 2010, only 12 graduated from a law school ranked in the top fifty in the U.S. News and World Report survey. On the other hand, out of the same 44 candidates, all but 7 graduated from a law school in the state of Ohio.
B. Endorsements by neutral associations
As in any other election, there are various organizations that provide endorsements or recommendations for judicial elections. Some of these organizations—such as newspapers and local or state bar associations—are relatively neutral as to the ideology or judicial philosophy of the candidate. Others are specifically issue-oriented, such as the chamber of commerce, various labor groups, or political associations trying to elect judges with certain values. We will discuss the “neutral” endorsing bodies in this section and consider the issue-oriented endorsements in the next section.
Endorsements by bar associations have a number of benefits. These organizations are able to spend time researching and interviewing the candidates; thus, they will know much more about each candidate than an average voter or even an extraordinarily diligent voter. A local bar association, for example, will typically send multi-page questionnaires to the candidates, conduct interviews of each candidate, and survey other attorneys about the candidate. (For a more detailed description of how these evaluations work, see Other Judicial Evaluation Projects <background_1_other_evaluations.php> in “Background Information”). Furthermore, the members of these organizations tend to be lawyers themselves, with the knowledge and skills necessary to evaluate each candidate’s disposition, intelligence, writing ability, legal acumen, and other relevant qualifications.
The resulting endorsements or recommendations, however, tend to be so objective that they border on unhelpful. Usually, a bar association will classify a candidate as “highly qualified,” “qualified,” or “unqualified”—with very few candidates receiving the latter classification. Often voters are given the choice between two “qualified” candidates, which in reality does not really assist them in making a decision.
In the end, bar associations can play an important role in screening candidates—so that if a clearly unqualified candidate seeks to become a judge, or a patently incompetent judge attempts to retain his or her seat, the bar association can alert voters to the fact. But in practice, even this role seems exaggerated: surveys have shown that only 15% of voters know about bar association recommendations, and studies conducted after the elections show that they have no influence on whether a judge gets re-elected—that is, a judge who receives an “unqualified” recommendation, is just as likely to be retained as a judge who receives a positive recommendation.10
Newspaper endorsements are more useful, of course, because they will invariably recommend one candidate over another. As with bar associations, however, most newspapers seem to focus on a candidate’s qualifications and background more than their ideology or judicial philosophy. One the one hand, it is useful for voters to get this information from an organization with the resources to delve more deeply into the qualifications of the candidates; on the other, if a voter wants information about a candidate’s substantive legal positions, newspaper editorials are unlikely to help.
But the true problem with recommendations from these neutral organizations is not that they offer too little help, but rather that they have the potential to offer too much help. If we expect voters to simply check to see what the “experts” think about each candidate and then vote accordingly, it is not clear why we have the voters participate in the process at all. Instead, it would be more efficient to have a merit selection system (as some states do) where the state bar association recommends candidates directly to the governor. States that choose to have lay voters select their judges obviously believe that voter participation adds something of value to the selection process, and that must mean that voters are meant to do more than simply check with the experts and vote along with their recommendations.
C. Endorsements by policy-oriented associations
Other, more partisan organizations also offer endorsements and recommendations in judicial elections. Some of these, like the chamber of commerce or the AFL-CIO, are groups whose primary purposes have nothing to do with judicial elections, but who will lend their name to support a specific candidate in a specific election. For the most part, these endorsements follow the expected party line: pro-business groups tend to endorse Republican judges, while pro-labor groups tend to endorse Democratic judges.
More intriguing are the groups whose sole purpose is to provide recommendations in elections, including—and sometimes exclusively—judicial elections. For example, Ohio Election Central <http://www.ohioelectioncentral.com>, which bills itself as “A Project of Citizens for Community Values,” provides recommendations for conservative voters for every level of local election in Ohio, including judges. Similarly, Judge Voter Guide< http://www.judgevoterguide.com> provides recommendations for conservative voters in judicial elections in the Los Angeles region. Judge Voter Guide sends all the questionnaires to all the candidates it reviews, asking questions such as: “The California Supreme Court has heard oral arguments to legalize same sex marriage in California. As a judge, how would you go about determining how to rule?”
These policy-oriented recommendations are transparently political—they see judges as policymakers, and they seek to educate their audience as to which judges are more likely to vote in the way that is favorable to their political ideology. However, they are only useful to a voter who shares the same ideology as the recommending organization. They also tend to be relatively one-dimensional in that the recommending organization may only look at one political issue when evaluating the candidates—whether the candidate is likely to support worker’s rights, for example, or whether the candidate will support “traditional family values.” The questionnaires sent out by these organizations could also be an unreliable gauge of how the candidate will actually rule in any given case, since almost no candidate will (or should) specifically state how he or she will vote on a given issue.
These issue-oriented endorsers make a significant assumption which the neutral endorsers do not make: they treat judges—especially appellate judges—as policymakers, not just neutral interpreters of the law. This is a somewhat controversial view of judges—many judges will argue that their job is merely to interpret the law, and not to make policy judgments. But most scholars and lay people would accept this assumption, and it is borne out by quite a bit of data showing that most judges vote in predictable patterns on given issues. (See Party Affiliation as a Predictor of Judicial Voting Patterns <background_2_party_affiliation.php> in “Background Information” as an example). The issue-oriented endorsers lose credibility by pushing their own agenda when gathering and presenting data, but their underlying assumption is still valid: judges on the bench do indeed make predictable policy choices, and these policy choices can guide voters who are trying to choose between two judicial candidates. There are two objective ways to present a judge’s political leanings to voters: based on judicial ideology or philosophy, or based on specific political issues. We will consider these in the next two sections.
D. Judicial philosophy
If judges are seen as policymakers, it is somewhat easier to see what voters might add to the selection process. Voters in a certain jurisdiction may prefer a certain type of judge—conservative voters may want a certain type of judge, while liberal voters may want a different type of judge. Many voters will follow this impulse by voting as they do in other elections in which they know little or nothing about the candidates—by voting along party lines. Unfortunately, the labels “Democrat” and “Republican” are not necessarily helpful in understanding how judges decide cases. Although many voters have an accurate idea of what it means to be a “Republican” state senator or a “Democratic” city councilman, it is harder to define what it means to be a “Democratic” or “Republican” judge.
In other words, judicial candidates need their own sets of categories and descriptors. Luckily the legal academy—and judges themselves—have come up with many different ways to categorize judges and describe their legal philosophy—there are textualists, for example, who seek to only interpret the plain language of a statute and will not attempt to determine, much less apply, the legislative purpose of the statute. (See Glossary of Judicial Philosophies <background_3_glossary.php> in “Background Information” for more details).
But using these categories raises a serious problem of translation, since voters may not truly understand what it means to call a judge a “textualist.” Other terms that are used to try to describe judges to voters, such as whether a judge is an “activist” or “soft on crime” are misunderstood at best and intentionally manipulated by opposing campaigns at worst. Furthermore, in many cases it is difficult to determine what a judge’s “judicial philosophy” actually is—few judges will openly admit to having an overarching judicial ideology, and scholars and commentators may disagree as to how to categorize each judge. Thus, anyone wishing to educate voters about a candidate’s judicial philosophy faces two problems: first, learning enough about a judge to categorize a candidate as a certain type of judge; and second, bridging the gap between the legal meaning of the category and the practical implications of the policy in order to present a candidate’s judicial philosophy to the voters in a comprehensible and meaningful way.
There is one other problem with using a candidates’ “judicial philosophy” to educate voters—most voters do not truly care about what that philosophy might be. Academics may enjoy debating whether a judge should consider the joint committee reports found in legislative history when interpreting the meaning of a statute, or whether a judge should give a high level of deference to an administrative agency, but these issues are not particularly interesting—or relevant—to the average voter. Instead, voters are likely to care about results on particular issues. In cases involving criminal defendant’s rights, does this judge tend to vote to protect the rights of the accused, or does she vote to enhance the powers of the police? Does the judge tend to interpret the law to encourage individual plaintiffs who seek damages against large corporations, or does he tend to protect the corporations from such lawsuits?
E. Evaluating prior voting record
Luckily, this final critique of using “judicial philosophy” as a guide also provides us with a possible solution to the problem of educating voters. If voters care about results, we can provide them with the specific results a judge is likely to give them on specific issues. And although judges are understandably reluctant to provide information about how they would vote on certain issues, they necessarily leave a track record with every case they decide, just as legislators leave a paper trail with the votes they cast in the legislature. By collecting data on how these judges vote, we can begin to perceive patterns in how they tend to vote in certain kinds of cases, and by communicating these patterns to the electorate, we can ensure that voters are making informed decisions about how they want their judges to vote in cases where the law may be ambiguous or unsettled. (In the next commentary <commentary_3_website_criteria.php>, we describe the method we use to categorize and record these votes—and we invite suggestions as to how to improve our methods.)
Unlike the endorsements by neutral groups such as state bar associations, using a judge’s prior record gives the voter an actual role to play in the election. Rather than simply rubber-stamping a decision made by the “experts” that a certain judge is qualified, voters can decide for themselves whether a judge’s decisions are consistent with the voters’ political ideology. And unlike the endorsements made by policy-oriented associations, the information is collected and presented in a neutral, unbiased manner, and voters can receive information on voting patterns in many different types of cases—criminal procedure, personal injury, challenges to the tax law, employment discrimination—not just the one or two “values” issues which the policy-oriented associations focus on (and which make up a very small percentage of the cases that a judge actually votes on).
The danger to this method, of course, is that judges will become little more than politicians, who are evaluated on the popularity of the policy decisions that they make instead of the quality of the legal analysis they conduct. There are two responses to this critique. First, judges in most cases are bound by the law to reach a certain result, and therefore the majority of decisions a judge makes are unaffected by his or her ideology or policy preferences. If a particularly partisan judge ignores the law in order to reach a specific result, he or she will almost certainly be outvoted by the other judges on the panel—and if not, the decision will certainly be overturned on appeal. So the judicial system provides an effective check on judges who may be tempted to reach decisions for political rather than legal reasons. But more fundamentally, it seems a little late to worry about the risk that judges will turn into politicians. Thirty-nine states require at least some of their judges to stand for popular election, a strong majority of Americans consistently tell pollsters that judges should be elected. This means that judges in these states are already politicians—politicians with a different role to play than legislators or executives, but politicians nonetheless. And if we expect the voters in these states to make informed decisions about the type of judge they would like to have on the bench, voters should know how the judges are likely to vote in those close cases where the law gives them the leeway to show their policy preferences.