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The Stupidity Of Judicial Elections

Adam Liptak has a nice piece in today's New York Times taking a look at the practice of electing judges, which is common at the state level in the U.S. but almost unheard-of abroad. Liptak's basic conclusion is that most people seem to think judicial elections are a bad idea, since very few voters are in a position to assess the relative merits of the candidates. Alex Tabarrok also notes that one effect of judicial elections is to put out-of-state parties at a major disadvantage in cases in state courts. He quotes one West Virginia judge:

As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone's else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me.

I'm inclined to agree with Liptak and Tabarrok. I mailed in my absentee ballot last week for California's June primary for non-presidential races, and as usual I was asked to vote in two races for superior court. I'd never heard of any of the candidates, it's a nonpartisan office, and all the candidates' ballot statements are essentially identical ("Endorsed by numerous law enforcement agencies", "Volunteer youth soccer coach," etc.). In the absence of any useful information, and not wanting to spend the time needed to do real research, I voted based on what some might consider to be frivolous criteria: In one race I chose a candidate because his opponent was endorsed by our former city attorney, whom I didn't particularly like, and in the other race I voted for one candidate because his opponent's ballot statement featured a gratuitous amount of capitalization, bolding, and underlining, often in combination. (NOT a desirable judicial trait, in my view.) Other voters probably gave the races even less careful consideration.

That said, I rather like the way California handles judicial selection for the state appellate courts and Supreme Court. Judges are appointed by the governor, but then subject to periodic retention elections (where voters are asked simply, "Should John Doe be retained as a judge, yes or no?"). The practical effect is to ensure that judges keep their jobs unless they seriously offend public opinion on a high-salience issue. (As in 1986, when three liberal judges were removed for, among other things, effectively refusing to enforce the death penalty.) This strikes a reasonable balance between the competing interests of judicial independence and democratic accountability, and enhances the public prestige of the courts--defenders of the recent gay marriage decision were able to note that all four signers of the majority opinion had won retention elections by wide margins.

--Josh Patashnik