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The Real Problem With Judicial Elections

April 8th, 2011 · 8 Comments

Jamelle Bouie lays out several reasons why popular election of judges is a terrible idea: The need to fund-raise (especially in smaller districts) creates conflicts with the requirement of impartiality; judges start handing down longer sentences to appear “tough on crime” during election season; because judicial elections are usually low-priority, they create the illusion of accountability more than the genuine article… These are all excellent points. But the latter two, at least, seem like symptoms of the more fundamental underlying problem: Ordinary people are generally not in any position to evaluate how well judges do their jobs, and in any event, that job isn’t to satisfy majority preferences. A judge whose rulings always produced the outcome preferred by the majority would, in fact, be a terrible judge.

Though not a lawyer, there are a handful of narrow areas of law I’ve been researching, reading, and writing about heavily for a few years now. I’d like to believe I’ve managed to get a decent handle on those few pet areas. Child, I ain’t passed the bar, but I know a li’l bit. And seeing what a complex and detail-driven process legal decision making is in the areas I do know something about has made me acutely aware of how ill equipped I am to seriously evaluate the quality of legal arguments in other domains. An opinion in a typical case will run dozens of pages (or longer), citing scores of other cases, each with their own equally lengthy opinions and tables of citations. Have the right controlling precedents been identified? Are the fact patterns really relevantly similar, or is there a basis for distinguishing? Have the canons of statutory construction been applied correctly? Usually you can’t tell just by reading an opinion—to really tell whether the reasoning is correct, you’ve got to actually be pretty familiar with all those other cases—and perhaps a bunch more that are relevant but didn’t figure in the decision—as well as all the statutes involved, maybe their legislative histories, as well as all the rules about how, exactly, to apply all those precedents and reconcile conflicts or resolve ambiguities.

Most of us, of course, can’t actually do all that. What we can do is look at the outcome and decide whether we like it or not. But the point of the rule of law is precisely that judges aren’t supposed to make decisions that way: They’re supposed to apply the law neutrally, even if that requires throwing out the case against a criminal who’s probably guilty, or rejecting a sympathetic plaintiff’s claim to compensation, or (for that matter) letting a gang of bigoted sociopaths traumatize a grieving family. And while the Supreme Court enjoys a certain amount of latitude, other judges are supposed to be bound by the rulings of higher courts—even when they think those rulings are profoundly misguided.

A good politician, other things equal, is one who produces the outcomes the majority of people want, and notwithstanding the rich and depressing literature on political ignorance, voters are at least somewhat able to monitor political outcomes. But that’s not at all the test of a good district judge. A good judge is one who engages in the process of legal reasoning skillfully, even when—maybe especially when—the law doesn’t yield the result most people would find more congenial in a particular case. But voters typically don’t evaluate the process—and for the most part couldn’t even if they wanted to. They observe the outcomes, which is exactly the wrong way of assessing judicial performance. In that sense, I might rephrase Jamelle’s last point: Judicial elections aren’t a problem because they provide a mere illusion of accountability to popular will. They’re a problem because judges shouldn’t be accountable on the dimensions that elections naturally track.

Tags: Law



8 responses so far ↓

  • 1 RR // Apr 8, 2011 at 3:57 pm

    I passed the bar, but I only know a lil bit. In my experience, judges, whether elected or not, are generally impartial as to the facts but not the law. There’s quite a bit of leeway in the law and judges can make it say what they want it to say. In the most controversial cases, personal bias plays a dominant roll and you might as well elect judges. I’m ill-equipped to opine on civil cases but in criminal cases, judges, elected or not, are typically pro-prosecution because most were once prosecutors themselves. The problem with elected judges only becomes obvious at sentencing.

  • 2 sheenyglass // Apr 9, 2011 at 1:03 am

    I’m a lawyer in NY state, where judges at the trial and intermediate appellate level are elected. Regarding the incentives, I think the criticisms are valid, but can also be addressed through campaign reform for the most part. Th major issue that goes completely undiscussed however is that unelected judges are political creatures as well – they just pander to the power structure making the appointment rather than the electorate. So don’t mistake unelected from unindebted.

    As for qualifications, in my experience, the vast majority of issues a judge faces at the trial level and to a lesser extent the intermediate appellate, require the application of a pretty well settled legal standard with the nuance coming in the facts to which the standard is applied. Additionally there are clerks who are doing a great deal (sometimes the majority) of the research and writing on these decisions at every level, whether or elected or not. The process of being put up for nomination is a kind of informal vetting as well. Sometimes it goes to a candidate as a reward for being a party stalwart, but usually it goes to a solid candidate. So I don’t think the election process has an appreciable negative effect on the intellectual caliber of judges. Perhaps there is a loss of qualified candidates who don’t care for the election process (pretty grueling actually).

    So I am a tentative supporter of judicial elections, provided there are meaningful restrictions on how the elections are run.

  • 3 Pithlord // Apr 9, 2011 at 11:12 am

    The problem isn’t so much election: any process for selecting judges will be political in some sense. The problem is re-election. A decision can’t be unbiased if the decision maker’s career might depend on it. Low profile judicial elections are actually better.

  • 4 Judges Shouldn’t Poll Watch | Sinting Link // Apr 11, 2011 at 7:00 pm

    […] Bouie thinks voting to elect judges is a bad idea. Julian Sanchez expands on […]

  • 5 What We Read, April 11-15, 2011 « Chicago Appleseed Blog // Apr 14, 2011 at 5:32 pm

    […] The Nation on “Why Judicial Elections are a Bad Thing.” This post, and Julian Sanchez’s response build upon our long-stated position that “Judges Should Be Evaluated For Performance, Not […]

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