Why does America elect judges, anyway?
The presidential race is dominating the airwaves this primary season. Depending on where states are in the electoral cycle, primary voters also will pick candidates for senators, governors, and other state officers, as well as for congressional representatives, state legislators, and local officials.
But there’s one electoral area that befuddles nearly all voters: Judicial races. Nationwide, 39 states hold at least some competitive elections to choose judges. The U.S. is one of only two countries that elect people to sit on the bench. And let’s face it: Most voters know less about judicial candidates than they do about Donald Trump’s actual policy positions.
Even when it comes to state supreme court races, the average voter doesn’t have much information on which to base a decision. Twenty-two states use competitive elections to select state supreme court justices (seven on a partisan basis), while 24 use bipartisan commissions to choose who sits on those courts. Campaign spending for state supreme court elections is growing at a staggering pace, mostly by outside special interest groups with their own agendas.
For example, Arkansas has a relatively inexpensive television market, but a whopping $1.3 million was spent on TV advertising alone for two state supreme court races on March 1, mostly from conservative out-of-state groups. In the race for a new chief justice, the conservative group-backed winner vowed to be guided by “prayer, not politics.” In the other contest, the winner was a circuit judge who once advocated banning gays and lesbians from adopting or fostering children. “Watchdog groups have said the Arkansas campaign may signal that outside spending will be a growing influence on judicial races nationwide this year, a trend strengthened since the 2010 Supreme Court’s Citizens United ruling opened the door for unlimited political spending by corporations, unions, and other interest groups,” says a story in the News Tribune in Arkansas.
State supreme court elections aside, even the political junkies among us probably don’t have a clue about who’s running for judge locally. Whether you live in a state that elects judges or appoints them, it matters who’s on the bench. Which system is better? I think it’s the system that keeps campaign spending out of the process.
The United States didn’t always elect judges. In The Federalist Papers, Alexander Hamilton argued that judges should be independent and insulated from the political process so that they can be a check on the legislative and executive branches. The founders wanted federal judges to have lifetime tenure and chose to have judges appointed, not elected.
As Hamilton wrote in Federalist No. 78:
This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. … The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.
Mississippi became the first state to require judicial elections in 1832. Many states followed suit during the next 30 years as they held state constitutional conventions. By the time the Civil War started, 21 of 30 states had adopted judicial elections. The change was seen as a chance for reform, as the awarding of judgeships had become part of a political patronage system.
Keeping politics out of the judicial system is the mission of the Justice at Stake campaign, a nonpartisan group. With an elected judiciary, that’s a lot easier said than done. Justice at Stake does not support any one system of choosing judges, but the group wants systems that “select high-quality judges, insulate them from inappropriate political pressures, and keep them accountable to the laws.” Here’s what the organization says in its mission statement:
Across America, your right to fair and impartial justice is at stake. Special interests are spending millions to influence decisions and elect judges to serve their narrow interest, not the public interest. Lawmakers and interest groups are trying to intimidate judges in retaliation for rulings they don’t like, often with threats of impeachment. And courts are being stripped of their powers to protect our rights.
Our democracy depends on fair, impartial courts that can protect our rights, guarantee equal justice, and make decisions based solely on the facts and the law—without fear of political intimidation. Our democracy also depends on access to justice, with courts safeguarded from harmful budget cuts that can erode not only the rule of law but ultimately, our freedom.
Outside money has become a major driver in judicial elections. Between 2000 and 2009, the 537 candidates running for state supreme courts across the country raised nearly $207 million, nearly three times what candidates spent in the previous decade, according to a report about the influence of money on judicial races. The report, “The New Politics of Judicial Elections 2000-2009: Decade of Change,” was published by Justice at Stake, the Brennan Center for Justice at NYU School of Law, and the National Institute on Money in State Politics. As the report says in its executive summary:
John Oliver skewers judicial elections with a segment that includes some rather terrifying judicial campaign ads. He even includes a quote from an Ohio judge who said, “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race.”
There are drawbacks to appointing judges. If a partisan officeholder or body has views you don’t agree with, you won’t like their selection of judge, either. When merit systems are used, judges are selected via a bipartisan commission and may face regular retention votes.
The founders had the right idea when they gave the president the constitutional duty to appoint federal judges and justices to the U.S. Supreme Court and have the Senate advise and consent to those nominations. What could go wrong with that system? Oh, that’s right …
Judicial election vs. merit selection of judges is apparently a hot topic in the legal community, and there are varying opinions as to the worthiness of judicial elections (I am not a lawyer, btw). Here’s a pro-election stance from Chris Bonneau, an associate professor of political science at the University of Pittsburgh and co-author of In Defense of Judicial Elections, in an op-ed in the Washington Post:
It is important to remember that efforts to maximize judicial “independence” from the electorate can also maximize independence from the law and the Constitution. Without a mechanism for effectively holding judges accountable, judges are free to “go rogue” and make decisions based solely on their political views. Is that better than a campaign season every now and then?
His argument seems iffy. Here’s another view from Jessica A. Levinson, an associate clinical professor at Loyola Law School-Los Angeles, in an op-ed from the Los Angeles Times:
What happens when voters lack meaningful information about candidates? We tend to vote based on factors that have little or no bearing on a candidate’s qualifications. For example, there have been instances of qualified sitting judges with foreign-sounding last names being defeated by less-qualified or unqualified challengers with Anglo-Saxon-sounding names. … It is inherently knotty to ask judges and would-be judges to take part in political campaigns. Judges should be making decisions by applying the law to the facts. Sometimes these decisions will be unpopular. That is often as it should be. Judges apply many laws meant to protect the rights of the minority, not the majority. Judges should not have to consider how their decisions would play in the next election — with voters or potential donors.
Here in Cook County, Illinois, which has had a Democratic political machine since the 1930s, whichever judicial candidate gets the nod in the Democratic primary gets the job in the fall, as most of the time Republicans don’t even bother to slate a judicial candidate. A sample GOP primary ballot for me showed NO Republican candidates in any judicial race. (A compilation of judicial candidates statewide shows a few Republicans elsewhere in Cook County, and more Republicans downstate.) Being a judge is a good gig—it pays well and is basically a lifetime appointment. The common wisdom always has been that people with an Irish middle name or surname usually got elected in Cook County. Thus, judicial candidates with a last name like “Kozlowski” were sure to include a middle or maiden name in all campaign literature if that name was “O’Shea” or “McNamara” or something similar. That’s no joke—note the shamrock and the kelly green color in the campaign signs above.
Judges also must face a retention ballot every six years, but it’s nearly impossible to get rid of a judge that way. Judges must receive a 60 percent “yes” vote to be retained, but most voters either just vote yes or skip the judge section altogether. Few voters do the homework of checking recommendations from multiple bar groups available online.
There used to be a judge in Cook County named Cynthia Brim. For three election cycles in a row, she was rated “not qualified” or the equivalent from multiple bar groups, but voters always failed to give her the boot. Then in March 2012 … well, here’s how the Chicago Tribune reported the story in 2014:
Charged with misdemeanor battery on a sheriff’s deputy, Brim was found not guilty by reason of insanity last year. She’d been arrested for shoving the officer outside the Daley Center in March 2012, a day after she interrupted her call in traffic court with a disturbing 45-minute rant about race, justice, and “kahoonas.” Ushered from her courtroom by a supervising judge, she was prohibited from returning without a police escort.
She’s been suspended ever since, collecting her $182,000 salary. She told the commission in March that she’s ready to return to work. “I can serve as a judge with full capability as long as I continue to take medication as prescribed,” she testified.
Only a few judges every election get the “thumbs-down” rating from every bar group, and Brim was one of them—in three separate cycles! Yet voters never threw her off the bench. It took an action from the Illinois Courts Commission, ruling that she was unfit to serve, to remove her as a judge. Back to the Tribune report:
The commission noted in its ruling that Brim had been hospitalized for psychiatric episodes five times since becoming a judge in 1994 and that she acknowledged she hadn’t taken her medications or sought treatment for two years before her latest breakdown. …
It’s a shame that Brim’s mental health issues were aired so publicly. Blame that on party leaders, who repeatedly supported her bids for retention despite strong evidence that she couldn’t do the job.
I was recently on jury duty. While I wasn’t empaneled this time around, it made me think of the last time I served on a jury and saw firsthand how lousy a judge can be.
It was a criminal case. The defendant was a truck driver who was charged with transporting stolen merchandise. The assistant state’s attorney looked like a guy fresh out of law school who had developed his legal chops by watching Law & Order.
Somehow, both the prosecutor and defense attorney did not object to the way the judge picked the jury, obviously to find out our education levels. He asked us one question: Where we went to high school and college. (Seriously.) I don’t know how that was supposed to give any insight on how we would vote as jurors, but that was it.
When it came time to deliberate, we weighed the evidence, and when we didn’t remember something clearly, we sent a note back out to the judge asking for clarification. His answer: Just remember it the best you can. In other words, don’t bother me, I’m busy.
At the end of about two hours, we had voted on multiple counts, with some convictions and some acquittals. We were ready to come back to the courtroom, and we let the sheriff’s deputy know.
“Thanks,” she told us. “You can all go home now.”
“What do you mean?” I asked in my role as jury forewoman (no one else volunteered). “We need to deliver the verdict.”
“I’ll take it,” she said. “You’re all done.”
It didn’t take long to figure out what had happened: While we were deliberating, the parties had come to a plea agreement. Only the judge never bothered to tell us, so we kept wasting our time in deliberations.
I wish I remembered that judge’s name. You can bet I would vote against him next time around. Except it probably wouldn’t make any difference.
Originally published on Daily Kos on March 6, 2016.