Judicial elections are a unique phenomenon. Federal judges are appointed by the president and confirmed by the U.S. Senate. In the rest of the world, it’s incredibly rare—or unheard of—for people to directly pick their judges.
A majority of states in the U.S. have elections for judges at the state and county levels. Like most everything else, the wisdom of the populace directly choosing those that will judge them is frequently debated.
Here are some of the pros and cons of electing judges.
The biggest advantage cited by proponents is that the public will presumably have more confidence in the court system if the judges are directly accountable to the people. Rather than glad-handing politicians to secure an appointment, the aspiring judge must appeal to the people he hopes to serve.
This makes it far more likely that a judge will be invested in their community and care more about the fair application of law than protecting narrow special interests. And when difficult and unpopular decisions have to be handed down, the public is far more likely to accept them graciously.
So the theory goes. But every coin has a flip side, and the disadvantages of judicial elections are built around the very same factors the advantages are.
The first problem goes to the availability of information. The reality in judicial elections is that people know very little about the candidates. Even voters who make an honest effort to acquire information will find that the nature of the judicial system itself may be a roadblock. The people most likely to have insight into a judge are going to be those that work with them regularly—namely, attorneys in the system. But what attorney is going to risk antagonizing a future judge by saying something negative during a campaign?
Appealing to the public is also a double-edged sword. It’s nice to think that having a judge who is a pillar of the community will give them the security and credibility to make unpopular decisions. But there is evidence suggesting that what really happens is that judges start to incorporate public sentiment in controversial decisions.
One study reviewed death penalty appeal cases across the country over a 15-year period. Judges who were there by appointment reversed the sentence more than a quarter of the time. But judges facing elections only ruled in favor of the defendant 15 percent of that time. That figure dropped to 11 percent if you factored in the competitiveness of the election.
Undoubtedly there were other factors driving these decisions, and the quality of a judge is certainly not measured by how often they rule in favor of the defendant. But given that convicted murderers are not exactly a popular group with the public, the disparity in how judges in different electoral situations reacted is concerning to anyone who simply wants the rule of law to hold sway in all cases.
How close the electoral connection should be between the populace and its leadership has been debated down through the ages. The ongoing discussion of judicial elections is just one more example.
