Is it Finally Time to Put an End to Judicial Elections?

With the 2016 presidential election around the corner, the national spotlight has turned toward the Republican and Democratic primaries. Candidates have already raised and spent countless millions of dollars chasing their respective party nominations. We, the voters, are inevitably the collateral victims of these campaigns. Forced to endure incessant political attack ads and watch those partially scripted, yet ironically incoherent performances we call “debates.” But endure we must, because no matter how annoying and senseless these campaigns can be, it is the price we the people seem willing to pay for democracy. Our nation is one of laws and its existence an idea. An idea that free citizens should freely elect and hold their lawmakers accountable.

But, for all its virtues, the idea of a democratic election was never intended to be sole means of appointing government officials. In fact, the Framers of the Constitution purposely excluded members of the United State Supreme Court from being subjected to popular election. Instead, Supreme Court Justices are nominated by the President, confirmed by the Senate and then serve a life term. Ultimately this “appointed for life” model was adopted for the lower trial and appellate judges that make up the federal court system.

One of the primary justification for appointing federal judges to the bench is to insulate them from political pressure, both from the electorate and other branches of the government. After all, in a free land the law must be applied uniformly and fairly. Politics will always be partisan, but judges shouldn’t be. To this end, the Framers of the Constitution recognized that best way to ensure judges remain unbiased and apolitical was to remove them from politics.

The upshot of all of this is that, since the ratification of the Constitution, federal judges have never been elected and instead are appointed. The nomination and appointment process itself is, of course, political. Especially with respect to Supreme Court Justices. However, the screening process for federal judges is vigorous, typically ensuring only highly qualified individuals become federal judges. And, once these judges are confirmed, they sit for life and are (at least in theory) insulated from political pressure.

Although the federal approach of granting life terms to judges has been questioned by some, few have criticized the appointment process itself. This makes sense. Requiring judges to run for election would arguably politicize the judiciary and undercut our aspiration of an apolitical court system. We all seem to agree that screening and nominating federal judges makes a lot of sense. Indeed, there has been little serious discussion about holding federal judicial elections.

But our American government is one of duel sovereignty. Within limits, state governments are able to experiment with forms of governance and democracy that differ from both our national government and other states. There is nothing wrong with this. To the contrary. Fifty states experimenting with varying forms of government fosters tremendous opportunity to test social and political theories and learn from successes and failures. Arguably, this is one of the greatest strengths of our nation’s unique system of duel sovereignty.

Over time this “experiment” process has yielded a number of insights and profound successes that have spread among the states. We can and should celebrate those successes. But I won’t do so here. This article is about a failure. A mistake in government that still exists in a significant number of states. A broken model that has been criticized for years, yet remains firmly entrenched in a number of states . . . judicial elections.

Judicial elections do not work. Practically and philosophically, judicial elections do not work. They can’t work because the rational for electing lawmakers is incongruent with the fundamental responsibilities of a judge. In theory, lawmakers react and respond to social changes. In theory, they are supposed to represent and normally submit to the will of their constituents. That is the job of the lawmaker. Unhappy with performance, adult citizens have an opportunity to vote their elected lawmakers out of office.

Judges are not supposed to have “constituents.” They do not “represent” voters. Their job is to dispassionately interpret and apply laws free from public opinion. The role of a judge is to ensure justice. And that means, at times, bucking popular sentiment. A judge’s motive can be justice (it should be), or it can be popularity (it shouldn’t be), but it can’t be both. Requiring judges to campaign in popular elections puts them in an impossible position, forced to reconcile their traditional oaths of fairness and impartiality with the knowledge that their judicial decisions will likely be scrutinized (and often misconstrued) during future campaigns. And that’s not all. Election campaigns cost money. Judges running for election often have to seek campaign contributions from interested parties (usually businesses and lawyers) who will appear before them on matters of potentially significant consequence. This is not just awkward for campaigning judges who are forbidden from making promises about future cases, but it creates a judicial system rife with potential conflicts of interest.

Despite the fundamental flaws inherent in judicial elections, a significant number of states continue to force their judges to run for election. They continue to do so despite mounting evidence and frequent scandals proving that judicial elections are a bad idea. Pennsylvania has become a microcosm for the shortcomings of this ill-suited system. It is also an appropriate case study as today Pennsylvanians head to the polls to elect three new Supreme Court Justices

In the past 5 years, Pennsylvania has had two Supreme Court Justices leave the bench amid scandal and a third now accused of sending and receiving offensive emails. The case of former Pennsylvania Supreme Court Justice Orie Melvin is perfect example of the potential conflicts caused by judicial elections. Justice Melvin served as a distinguished judge on Pennsylvania’s Superior Court from 1997 through 2009. In 2009, Justice Melvin ran for and was elected to a 10 year term on the Pennsylvania Supreme Court. But her time on the Supreme Court would be short lived. In 2010, Justice Melvin’s sister, Pennsylvania Senator Jane Orie, was arrested and charged with using her staff and office resources to help run her sister’s campaign for the Supreme Court. In 2012, Justice Melvin herself was indicted on nine counts alleging she used legislative staff and her own judicial staff to perform campaign functions. She was subsequently removed from the Court and in 2013 was convicted of three felonies for theft of services.

Justice Melvin’s story is unique, but not all that surprising. Expecting judges to properly discharge their duties while simultaneously running time-consuming and costly election campaigns is unrealistic. More importantly, as in the case of Justice Melvin, it fosters an environment ripe for potential ethical lapses.

But there is growing evidence of even more profound problems with judicial elections. A few months ago, Reuters reported on a study it conducted that compared instances of death penalty sentences being overturned in states that directly elected high court justices versus states that appointed justices. Reuters’ analysis showed death penalty sentences were twice as likely to be overturned in states where high court justices were appointed compared to states where high court justices were directly elected. A similar analysis conducted a few years ago and cited by Supreme Court Justice Sonia Sotomayor showed that Alabama judges are more likely to impose the death penalty in election years.

Although I can’t vouch for the methodology used by Reuters or in the Alabama analysis, if reliable these results are startling. Such findings suggest (some might say confirm) that elected judges are improperly influenced (consciously, subconsciously or both) by political pressure associated with direct elections. This should be a very troubling thought for anyone that values a system of justice that is principled and fair.

I am certainly not the first person that has criticized judicial elections. Not by a longshot. The shortcomings and problems inherent in electing judges has been written about and discussed in legal writings for years. From time-to-time the popular news media will run an article or two criticizing the process. But it is an issue that does not seem to naturally resonate with the general population. I’m not sure why that is the case. Perhaps because we are so familiar with and conditioned to the benefits of democratic elections. Maybe we just assume that popular elections are necessarily good. Whatever the reason, as we head into a new election cycle, it seems an appropriate time to reconsider whether there is any real benefit to electing our judges. Because it is getting harder to see the upside.

Photo Attribution: FreeImages.com/Gabriel Doyle