Abstract and Keywords
Chapter 4 lays out the respective arguments for appointive and elective systems, against the backdrop of the new politics of judicial selection. It describes how gubernatorial appointment and merit selection systems are essentially pitted against partisan and nonpartisan election systems, and there is a peril to this binary approach in that it overlooks important distinctions between partisan and nonpartisan election systems on the one hand, and merit selection and traditional appointive systems on the other. The discussion begins with the role of the judge in American government, and the case that can be made for appointed judiciaries. It then makes the case for elected judiciaries before launching into the case for incremental reform.
Chapter 2 recounted the history of judicial selection. It chronicled the states’ centuries-old efforts to promote an independent and impartial judiciary, and described the different systems of selection that have emerged over time. Chapter 3 then surveyed the modern judicial selection landscape and highlighted the ways in which judicial elections have become more contentious and expensive affairs, oriented less toward promoting judicial independence than curbing it. Having thus described the past and present of judicial selection across the states, this chapter takes a turn for the normative by exploring the arguments for and against the selection systems in use.
There are at least five selection systems in play among the states (not counting sub-variations): gubernatorial appointment, legislative appointment, partisan contested election, nonpartisan contested election, and merit selection (commission-assisted gubernatorial appointment), with or without retention election.1 There are perennial skirmishes over the relative merits of these five systems, but the entrenched battle line is drawn between elections and appointments, and whether contested popular elections ought to be the primary means by which judges are (p.78) chosen. In effect, that pits gubernatorial appointment and merit selection systems against partisan and nonpartisan election systems (with the two states that still employ legislative appointment processes making infrequent bids to join the fracas). A peril to this binary approach is that it overlooks important distinctions between partisan and nonpartisan election systems on the one hand, and merit selection and traditional appointive systems on the other. To keep it simple, in this chapter I retain the election versus appointment dichotomy, but to avoid overgeneralization, I flag distinctions between sub-regimes, as necessary. Another peril to the elections-appointments dichotomy is that it pays inadequate heed to the difference between initial selection and reselection processes. The implications for judicial independence and accountability are quite different when a judge is initially elected or appointed, and when she is reappointed, re-elected (or not) in light of her past performance on the bench. I revisit this issue in chapter 6.
The sections that follow organize and summarize the dueling arguments with reference to three core issues: the role of the judge in American government, the particular merits and demerits of elective and appointive systems, and the case for incremental reform.
The Role of the Judge in American Government
The Brief for Appointed Judiciaries
In the United States, the people have ordained and established constitutions in which they delegate to the legislative branch the power to make laws, subject to limits that their constitutions specify. Through their constitutions, the people have delegated to the executive branch the power to implement and enforce laws that the legislature makes. And they have assigned to the judicial branch the power to interpret and apply those laws in the context of cases filed by parties who petition the courts to interpret the law in their favor. Included among the laws that the courts interpret is the constitution itself, which puts courts in the position of upholding the constitution by invalidating other laws that exceed the (p.79) constitutional authority of the legislative branch to make or of the executive branch to enforce.
This state of affairs, in which adversaries square off against each other in front of a judge who officiates the contest by applying a preexisting body of rules to the end of declaring a victor, conjures an obvious sports analogy. The American Bar Association’s Division on Public Education explains that “[j]udges are like umpires in baseball or referees in football or basketball.”2 “Like the ump,” the ABA elaborates, judges “call ‘em as they see ‘em, according to the facts and law—without regard to which side is popular (no home field advantage), without regard to who is ‘favored’, without regard for what the spectators want, and without regard to whether the judge agrees with the law.” In his 2005 Senate confirmation testimony, Chief Justice John Roberts likewise analogized judges to umpires, for the purpose of highlighting the limited role judges play in adjudication. “Umpires don’t make the rules,” then-judge Roberts cautioned; rather, “they apply them.” Thus, in his view, “[t]he role of an umpire and a judge is critical,” because “[t]hey make sure everybody plays by the rules. But it is a limited role.”3
If judges are like umpires, then subjecting judges to popular election is incompatible with their role. In 1996, U.S. Supreme Court Justice John Paul Stevens gave a speech in which he likened the practice of electing judges to “allowing football fans to elect referees”—a practice that he condemned as “profoundly unwise.”4 If we want umpires to “call ‘em as they see ‘em,” then letting the fans decide whether an ump keeps his job is a bad idea because it will motivate umpires to make popular calls, rather than correct ones. The same goes for judges: If we want judges to “make sure everybody plays by the rules,” then subjecting judges to popular election is a bad idea because it will motivate them to disregard the rules whenever the rules dictate an unpopular outcome that could jeopardize the judges’ tenure.
Social science data support the conclusion that impending elections influence the decisions judges make. One Pennsylvania study found that judges running for retention imposed sentences on criminal defendants for periods of incarceration that were, on average, several months longer (p.80) than at other times.5 This occurred in liberal and conservative voting districts alike: judges are at no meaningful risk of losing elections for being too tough on crime, and so risk-averse judges with upcoming elections err on the side of severity, even in liberal districts where the risk of voter backlash for leniency is lower.6 One study found that supreme court justices in nonpartisan election states are more responsive to voter preferences than in partisan election states in abortion cases—the theory being that in nonpartisan election states, judges have no formal party affiliation to signal their ideological compatibility with voters, and convey that information via their decisions in ideologically charged cases.7
In contested election states the threat posed by a challenger substantially increases pressure on incumbents to mollify voters. Hence, during the campaign season, judges subject to partisan elections impose harsher sentences on criminal defendants than judges subject to retention election.8 In states with noncompetitive retention elections, judges appear to take a “better safe than sorry” approach and issue rulings that align more closely with the liberal or conservative orientation of their voters as elections approach.9
In short, judicial elections do not motivate judges to “call ’em as they see ’em.” Judicial elections motivate judges to call ’em as voters want ’em. That is as it should be for governors, mayors, legislators, and city council members. Public officials in the legislative and executive branches make and implement public policy on behalf of the constituents they represent. Being responsive to the preferences of those constituents is perfectly compatible with good government in a representative democracy.
But judges are different. “Unlike their counterparts in the political branches,” Supreme Court Justice Ruth Bader Ginsburg has explained, “judges are expected to refrain from catering to particular constituencies.”10 Rather, “[t]heir mission is to decide ‘individual cases and controversies’ on individual records” by “neutrally applying legal principles, and, when necessary, ‘stand[ing] up to what is generally supreme in a democracy: the popular will.”11 Unlike other elected officials, judges are not supposed to do what the electorate wants them to do. Hence, (p.81) judges have been subject to a ubiquitous ethics rule dating back nearly a century, which states that they “shall not be swayed by public clamor or fear of criticism.” In a like vein, ethics rules add that judges “shall not permit . . . political . . . or other interests or relationships to influence the judge’s judicial conduct . . .”12
If the legislature enacts a new statute that violates the supreme law of the state constitution—a constitution that the people adopted generations earlier to protect the rights of those that the new law abridges—then it is incumbent on judges to strike the statute down, regardless of how popular it may be. If voters are unhappy with the result, they can petition their elected representatives to amend the constitution or (if possible) fix the statute. Judicial elections, however, enable the electorate to take the additional step of firing judges who make unpopular rulings—a step that cannot peacefully coexist with the expectation that judges will stand up to popular will. As the American Bar Association’s Commission on the 21st Century Judiciary explained, “if the law is to protect the one as well as the many—it is imperative that the administration of justice not become a popularity contest. We need judges who will tell us what the law is and how it applies in individual cases without regard to what the results of the latest opinion poll are . . . .”13
The role of unelected federal judges in desegregating the South during the civil rights era offers a classic illustration of “countermajoritarian,” appointed courts in action. After the Civil War, the U.S. Constitution was amended to ban slavery, grant African Americans citizenship, extend voting rights to African American men, and guarantee due process rights to all. The Southern states then proceeded to entrench racial segregation in the “Jim Crow” era that followed, via laws that preserved nominal equality between the races. During the civil rights movement of the mid-twentieth century, southern federal courts began to invalidate state and local laws that perpetuated racial inequality through segregation, culminating in the U.S. Supreme Court’s decision in Brown v. Board of Education, which declared that racial separation was inherently unequal. Those federal judges issued rulings in the teeth of extreme and sometimes violent opposition that would have been insurmountable had the (p.82) local electorate possessed the power to vote them from office.14 But for independent, unelected federal judges, Jim Crow laws could have flouted the Constitution’s Civil War amendments indefinitely.
The Brief for Elected Judiciaries
Eighteenth century civics imagined independent judges aloft on benches and clothed in ermine robes symbolizing their purity of purpose, who issued crystalline divinations of law that sparkled unobscured by baser influences that cloud the thinking of mere mortals. We have learned some things in the intervening centuries, among them that this is a crock.
First, American judges are not above the political fray but part of it. They are powerful people, whose decisions are fraught with policy implications that affect our lives, liberty, and property. Judges breathe meaning into ambiguously worded laws. Their interpretations of legislative enactments can take statutes in directions their makers never intended. Their interpretations of constitutions can obliterate the validity of statutes altogether. Their decisions have prompted vituperative partisan debate, sparked generations of political protest, and catalyzed civil war.
Second, the law is not mathematics, in which case outcomes are dictated by mechanical application of clear rules to known facts. The reason parties litigate cases “all the way to the Supreme Court” is because the relevant facts and law are uncertain enough to support differing results. Hence, the rulings judges issue in difficult cases—and the resulting legal policies judges make—are not a matter of science, but art, that require the exercise of discretion and judgment.
Third, judges are not mathematicians, but people. As people, judges have varying perspectives on the world that they develop over the course of their lives—perspectives that guide their moral compass, inform their conception of justice, and fuel their ideological inclinations. Those perspectives are influenced by myriad factors, including their upbringing, education, life experience, religion, race, gender, (p.83) ethnicity, and political affiliation. And the evidence is overwhelming that the policy perspectives unelected judges cultivate over the course of their lives inform the discretion and judgment that they exercise when deciding cases.
In the words of one political scientist, “[the assumption that independent judges use their freedom to decide impartially according to law is contradicted by the empirical evidence.”15 Bluntly put, independent judges are policymakers in robes. Political scientists who have generated and reviewed the data have coined the phrase “myth of legality” to characterize stubborn and persistent adherence to the debunked proposition that independent judges disregard extralegal influences and follow the law.16 And many of those same political scientists have developed an “attitudinal model” to show that the rulings judges make are better explained with reference to a judge’s ideological attitudes than operative law.17
Chris Bonneau and Melinda Gann Hall punctuate the point concisely, when they write: “Although it is the modern equivalent of declaring that the emperor has no clothes to say so, politically astute observers fully recognize that the basic political preferences of judges influence their votes.”18 It is all fine and well to celebrate the federal courts for dismantling Jim Crow laws during the civil rights era. But if federal judges were truly “countermajoritarian” decision-makers who uphold the law unsullied by their own ideological preferences, they would have ended Jim Crow generations earlier.
Given the inevitability of ideological and other extralegal influences on judicial decision-making, independence from electoral accountability does not free judges to uphold the law; it untethers them to do whatever they damn well please. Insofar as the law has intrinsic meaning, appointed judges are liberated to disregard that meaning and act upon their personal feelings and ideological preferences. Insofar as the law lacks intrinsic meaning and is all in the eye of the beholder, appointive systems dictate that the eye of the elites trumps the eye of the electorate, which is antithetical to the principles of a representative democracy.
(p.84) Judges are called upon to resolve unanswered questions about ambiguous spaces in the law. When judges fill those spaces by declaring what the law is, they make public policy, and the policy they make should be acceptable to the people they serve to no less an extent for judges than for policymakers in the other branches of government. And the only way to ensure that the public supports the policies judges make is to subject judges to periodic elections.
Social science data reveal that judges decide cases differently in the shadow of impending elections, which shows that judicial elections work as intended. The specter of future elections influences judges to exercise their judgment and discretion with reference to the policy preferences of the electorate, instead of their own idiosyncratic ideological biases that would otherwise hold sway. This state of affairs, in which judges check their own impulses and take the views of their voters into account when making legal policy—or face the consequences—is democracy in action, and wholly compatible with the rule of law. As Bonneau and Hall conclude: “We think it far better for justices to draw upon public perceptions and the prevailing state political climate when resolving difficult disputes than to engage in the unfettered pursuit of their own personal preferences. In fact, strategic contingencies should bring justices into line with the rule of law rather than negate it.”19
Consider, for example, the defeat of California chief justice Rose Bird in her 1986 retention election, which, as discussed in chapter 2, was a bellwether event in the new politics of judicial elections. In ten years as chief justice, Bird heard sixty-one appeals from death penalty cases and voted to uphold the death penalty in precisely none of them. The operative law that she had taken an oath to uphold provided for the imposition of capital punishment. By refusing to uphold the death penalty across an uninterrupted line of cases, Bird disregarded the law and systematically imposed her own ideological bias against capital punishment in the teeth of the public’s policy preferences to the contrary. But for periodic elections, Bird could have flouted the law and the will of the people indefinitely. Conversely, had Bird factored Californians’ support for the death (p.85) penalty into her decision-making, she could have retained her seat. That is not intimidation; that is representative democracy.
The Particular Merits and Demerits of Elective and Appointive Systems
The Brief for Appointed Judiciaries
Beyond the core problem that subjecting judges to electoral accountability undermines the umpire-judge’s ability to make independent, impartial, and sometimes unpopular calls consistent with the operative facts and law, is the related concern that voters are ill-equipped to hold umpire-judges accountable in acceptable ways. The problem is twofold. First, voters lack the competence to evaluate judicial candidates adequately. Second, voters are too apathetic about judicial races to participate meaningfully.
Evaluating the competence of doctors, lawyers, and other professionals who receive years of specialized training requires expertise. That helps to explain the need for expert witnesses in lawyer malpractice litigation: lay jurors lack the skills to ascertain and apply standards of professional competence unassisted. Most candidates for public office do not need specialized legal training. A good policy analyst with people skills can be a fine legislator without going to law school. A good administrator with leadership skills can be a terrific governor without holding a license to practice law. Thus, the electorate needs no special skills to evaluate those candidates. Voters can listen to the candidates, learn their agendas, and decide for themselves which candidates possess the qualities needed to best represent them and their views.
Judges are different. Judges do not represent the views of their constituents or advocate agendas. They must decide cases between adversaries who argue for opposing interpretations or applications of operative law. It therefore falls to judges to parse relevant language in constitutions, statutes, ordinances, administrative rules, and case precedent, to determine—as impartially as possible—what the law requires before (p.86) applying that law to resolve disputes between parties. And that requires specialized legal training and experience. Every state establishes the minimum qualifications necessary for judicial officers, and every state requires that judges of general jurisdiction be lawyers.
Without legal training to make an independent assessment of whether judicial candidates exhibit the skills necessary to interpret and apply the law competently, voters must rely on their general knowledge of courts and judges, and the more specific information they can glean about a given race. Their general state of knowledge is woeful. One author has summarized the litany of deplorables in an article about voter ignorance in judicial elections:20 Fewer than 20 percent of Americans can name the three branches of government—fewer, one infamous survey reported, than can name the Three Stooges. Two-thirds of the public cannot identify a single member of the U.S. Supreme Court and fewer than 3 percent of American teenagers can identify the chief justice. Most survey respondents are unable to identify any state judge at any level of their court system. And a majority is unaware that their state even has a constitution.
Given their lack of specialized skills and general knowledge necessary to evaluate judicial candidates competently, voters are uniquely positioned to make puzzling choices. Consider the example of Alabama chief justice Roy Moore.21 Shortly after his election in 2000, Moore installed a 2.6-ton granite monument to the Ten Commandments in his courthouse rotunda, and arranged for a Christian television ministry to film the event. Federal courts ordered Moore to remove the monument on the grounds that the display established a religion in violation of the U.S. Constitution, but Moore refused. The debatable issue of whether installing the monument was unconstitutional was beside the inarguable point that by openly disobeying a direct court order, Moore had flouted his oath to follow the law. In 2003, Moore’s fellow justices voted unanimously to remove the monument, and later that year, the Alabama Court of the Judiciary voted unanimously to remove Moore from office for misconduct. In 2012, Alabama voters elected Moore to another term as chief justice. In 2015, Moore, acting in defiance of the U.S. Supreme Court’s (p.87) recent ruling in Obergefell, directed the state’s probate judges to deny marriage licenses to same-sex couples, as discussed in chapter 1. Then, in 2016, the Alabama Court of the Judiciary voted unanimously to suspend Moore for the remainder of his term. The Moore affair may be an outlier, but there is data to support the propositions that appointed judges are disciplined less frequently than their elected counterparts, and that merit selection systems do a better job of weeding out marginal candidates.22 It is all but inconceivable, for example, that a merit selection nominating commission would deem a former judge, who had been removed for misconduct, qualified to occupy the highest judicial office in the state.
Justice Moore’s imbroglio is an extreme example. He became a household name after making a national spectacle of himself—meaning that Alabama voters had plenty of information on hand before they made a puzzling choice. More typically, state judges operate below the electorate’s radar. Thus, when it comes to what information voters acquire about judicial races in the new politics of supreme court elections, the usual answer is: what they learn from campaign advertising. But as discussed in chapter 3, campaign advertising often applauds or excoriates judges for the outcomes of cases they decide with little or no regard for whether those outcomes were warranted or required by applicable law. As a consequence, badly informed voters are left with no meaningful basis upon which to distinguish judges who are bungling rogues from those who are blameless messengers, and must shoot indiscriminately.
Highly motivated voters can overcome their information deficit by acquainting themselves with basic civics; consulting judicial candidate voter guides that some jurisdictions publish, reviewing judicial performance evaluations conducted by bar organizations and court systems, seeking out the opinions of legal experts, basing their votes on an assessment of the candidates’ qualifications and credentials, and resisting the siren’s song of campaign commercials that implore voters to punish incumbent judges for unpopular rulings regardless of applicable law. But “highly motivated” does not describe the average voter in judicial races. In addition to lacking the requisite expertise to evaluate judicial competence, many voters lack the requisite interest in judicial elections (p.88) to participate. On the typical ballot, judicial races appear toward the bottom, after voters choose their president, senator, congressperson, governor, mayor, and so on. By the time voters reach the “down-ballot” judicial races, there is a well-documented “roll-off,” in which an average of 25 percent of the voters who appear at the polls do not cast a ballot in the judicial races.23
One common explanation for roll-off is “ballot fatigue,” which is a polite way of saying that after standing in the booth for two minutes, voters do not regard the judicial races as important enough to merit an additional thirty seconds of their lives. A second explanation is that voters forgo participating in judicial races because they have not gone to the trouble of acquiring enough information about the candidates to make an intelligent choice. Either way, the result is the same: when the average voter turnout of around 60 percent in years when presidential candidates are on the ballot, and 40 percent in years when they are not, is diminished by an additional 25 percent roll-off in judicial races, it means that a majority of eligible voters can rarely if ever summon the enthusiasm to vote in judicial races. That minority of voters contracts even further if one discounts for those who voted only in the technical sense by flipping levers randomly without knowing whom the candidates were.
Insofar as highly competitive judicial races have the potential to grab voter attention and diminish roll-off, they do so at the expense of the judiciary’s legitimacy. As discussed in chapter 2, in 1906, Roscoe Pound criticized judicial elections for “compelling judges to become politicians,” which “in many jurisdictions has almost destroyed the traditional respect for the Bench.” Pound attributed the phenomenon to “an age in transition,” and predicted that the problems it created “will take care of themselves.”24 He predicted wrong. Populist and Progressive Era attacks on federal and state courts would eventually subside, and in many states, the partisan election systems that Pound critiqued would be replaced by nonpartisan election and, later, merit selection systems. But the age of transition never ended, and a century later, the deleterious impact of (p.89) “compelling judges to become politicians” has, if anything, worsened, as chapter 3 discusses.
Former U.S. Supreme Court justice Sandra Day O’Connor has described judicial elections in the modern era as “tawdry and embarrassing,” and has warned that “[t]he public is growing increasingly skeptical of elected judges in particular,” whom it has come to regard as “just politicians in robes.”25 As Justice O’Connor added, this bodes ill for the legitimacy of the judiciary generally, because “distrust of the judiciary in any jurisdiction becomes distrust of the judiciary in all jurisdictions.”
Two specific features of competitive judicial races in the modern era exacerbate underlying legitimacy problems. First, in the aftermath of the U.S. Supreme Court’s decision in Republican Party of Minnesota v. White,26 judicial candidates have a right to campaign like ordinary politicians by taking positions on the issues they will later decide as judges. When judges telegraph how they will decide future cases before the parties are heard, the facts are adduced, or the law is analyzed in the context of the case that is ultimately filed, those judges undermine public confidence in the integrity of the judicial process and the impartiality of the judges involved.
Second, competitive elections are bankrolled by campaign contributions and independent expenditures from individuals and groups with a vested interest in the outcomes of cases that the candidates will decide as judges. There is a widely documented correlation between the campaign support judicial candidates receive and the decisions they later make. One study of 470 justices spanning 28,000 cases across multiple states found that for “judges elected in partisan elections, contributions from various interest groups have a statistically significant relationship with the probability that judges vote for litigants that the interest groups favor.”27 Other studies have replicated these results in states that select judges via partisan and nonpartisan elections, including Alabama, Georgia, Kentucky, Louisiana, Michigan, Montana, Ohio, Pennsylvania, Texas, and Washington.28 One researcher described the correlation he found as “remarkably close;”29 another (p.90) concluded that the contributions judges receive “directly affect judicial decisionmaking,”30 and two more inferred a “quid pro quo relationship between contributors and votes.”31
When interest groups give candidates piles of money to win their elections, and those candidates later cast votes in favor of their benefactors, one need not be pathologically suspicious to think that something fishy is going on. And so 76 percent of the public and a surprising 46 percent of judges themselves think that judges are influenced to varying degrees by the campaign contributions they receive.32 As Justice O’Connor has warned, “This crisis of confidence in the judiciary is real and growing . . . . Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”33 It is telling, that in the aftermath of a bruising $9 million Illinois Supreme Court race, the victor himself commented on the money spent, that “Basically, that’s obscene for a judicial race . . . How can people have faith in the system?”34
In my first article on judicial selection, entitled “Why Judicial Elections Stink,” I sought to distill the litany of problems associated with judicial elections down to their ironic essence, in a four-part “Axiom of 80.”35 Up to 80 percent of registered voters do not vote in judicial elections. Up to 80 percent of the public that does vote in judicial elections cannot identify the candidates for whom they voted. Up to 80 percent of the public think that the campaign contributions in judicial elections influence judicial decision-making. And yet 80 percent of the public still supports judicial elections. On the last point, however, I predicted that the legitimacy-threatening features of judicial elections would lead public support to erode over time.
This profusion of problems with elected judiciaries disappears if judges are appointed. Once appointed, judges retain the independence necessary to call balls and strikes without fear of reprisal for making unpopular calls. The task of appointing judges is vested in the hands of elected officials or commissions with the time, interest, and expertise to select capable and qualified men and women for the job. And without judicial races to bankroll, interest groups are denied the opportunity to peddle influence via campaign support.
Given the role of elections in promoting judicial accountability, it should come as no surprise that a significant majority of the American public favors an elected judiciary. Political scientist James Gibson has shown that elections enhance the judiciary’s legitimacy: the public is more likely to accept judicial decisions with which it disagrees if those decisions are made by elected judges.36 Conversely, research has revealed that appointments processes can damage the judiciary’s legitimacy: in the federal system, fractious confirmation battles diminish public respect for the courts to the extent that they cast judicial nominees as naked political actors.37
Then there are claims pressed by the election-phobic, that the judiciary’s impartiality and legitimacy will be undermined by the Supreme Court’s decision in Republican Party of Minnesota v. White. White will spawn a new generation of campaigns, critics of the decision argue, in which candidates lock themselves into positions on cases that will come before them as judges before those cases are heard. Such claims are, in a word, mistaken. Studies show no meaningful increase in contestation and competition among state supreme courts after White, and a comprehensive study of trial court races after White concluded that “[d]espite repeated claims of certain segments of the American Bar Association and the legal community,” there is “simply no evidence that the speech environment in these races has devolved into nasty attacks.”38 Thus, the study authors conclude, “partisan elections are not contributing to an unhealthy campaign environment in trial court races.”39
The new politics of judicial elections has enabled judicial races to realize their potential more fully. Demographic changes—most notably the decline and fall of Democratic Party control in southern states—have created new opportunities for interparty competition. State courts have become forums of choice for litigating contentious social issues. Changes in appellate structure have limited state supreme court dockets to fewer, often more controversial cases. The trial bar and business community have made state courts a battlefield in their struggle to control (p.92) tort liability and reform. These developments, when coupled with the role of courts in helping or hindering the “war on crime,” have elevated the political profile of state courts and the cases they decide. That, in turn, has heightened political interest in judicial races, which has generated more competition for judicial seats, which has funneled more money into judicial races, which has bought more advertising to better inform the electorate about the races, which has piqued voter interest in supreme court elections, which has decreased voter roll-off at the polls.40 All good. Moreover, research reveals that voters draw relatively sophisticated distinctions between the candidates, by favoring quality candidates with prior judicial experience in races for open seats (where support for the more experienced candidate cannot be attributed to the advantages of incumbency).41
When it comes to judicial elections and the role they play in promoting democracy, partisan systems deserve special mention. A candidate’s party affiliation conveys a package of information about the candidate’s philosophy and ideological orientation that assists voters in making informed choices and reduces roll-off relative to nonpartisan races. Partisan races tend to be more competitive, with fewer uncontested seats, and a higher rate of incumbent turnover, which are hallmarks of a healthy democratic process. Nonpartisan races do not serve their intended purpose of eliminating political party control over judicial selection; rather, they are often nonpartisan in name only and subject to partisan influence and control behind the scenes. As a consequence, stripping candidates of party identifiers serves only to disable candidates from differentiating themselves with voters.42
In short, partisan systems deserve credit for promoting hotly contested, highly competitive, democracy-enhancing judicial races. But judicial elections have an important role to play even if races are uncontested, inconsequential affairs much of the time. When incumbent judges do their jobs well enough to remain popular, generate no controversy, and avoid attracting viable opponents, the electorate should not be faulted for remaining disengaged, under-informed, and voting in fewer numbers. But when judges step out of line, elections afford the public an important (p.93) right to intercede and oust the rogues, which encourages good conduct and deters bad. This may be especially true of trial judges, whose relative anonymity makes their “races” sleepy, often uncontested affairs—unless and until something goes wrong. Two examples that captured national headlines illustrate the point.
In 2016, Santa Clara County judge Aaron Persky sentenced convicted rapist and former Stanford University swimmer Brock Turner to three months of incarceration, with the explanation that the longer prison term prosecutors had recommended would have a “severe impact” on Turner.43 The sentence provoked national outrage. As the president pro tempore of the California Senate argued, “Judge Persky has put the interest of convicted abusers ahead of interests for victims of sexual assault. To me, it shows he is fundamentally unfit to serve on the bench.” The judiciary investigated a complaint against Persky, but declined to discipline him. The remaining avenue available to address the judge’s conduct was the electoral process. Persky had recently won uncontested re-election, and with his next election six years off, angry Californians petitioned for a recall election, as authorized by California law, and removed him from office. Although few states provide for judicial recall, the essential point is to underscore how elections can be an antidote to unacceptable judicial conduct when an otherwise indifferent electorate becomes energized.
Likewise in 2016, in Las Vegas, Nevada, Justice of the Peace Conrad Hafen ordered a public defender handcuffed and seated next to inmates who were awaiting their hearings, to teach her “a lesson” for interrupting him after he cut off her argument on behalf of her client. While there was room to argue that the public defender spoke out of turn, subjecting her to such public humiliation was widely regarded as an abuse of power, with sexist overtones.44 Shortly thereafter, Hafen stood for re-election and was defeated in a landslide, garnering just 24 percent of the vote—a result attributed to voter disapproval of Hafen’s conduct earlier that year.45
Appointive systems, in contrast, fail at every turn. First, and perhaps foremost, so-called “merit selection” systems do not produce judges who are measurably more meritorious. One study from the 1980s found no (p.94) discernible differences in the quality of judges chosen by different selection systems.46 In a more recent and extensive study of the subject, Greg Goelzhauser reached a similar conclusion: “Election underperforms merit selection and appointment on certain measures of educational quality and performance,” but overall, “the empirical results suggest that selections yield similarly qualified state supreme court justices.”47 One study conducted by a trio of distinguished law professors found that elected judges wrote more opinions and were more independent.48 “In other words,” Bonneau and Hall conclude from this study, “judges chosen in elections, particularly in partisan elections, are better than judges chosen by other methods.”49
Second, merit selection systems have failed in their efforts to keep the politics out of judicial selection. Merit selection systems delegate to unaccountable commissions the task of creating a candidate pool from which governors select judges—commissions typically dominated by lawyers and judges, who deliberate in black boxes impervious to public scrutiny. Researchers have found that these commissions are subject to a variety of political influences. An early study found evidence of “panel-stacking,” in which commissions forced the governor’s hand by creating candidate pools limited to one viable choice; and “log-rolling,” in which commissioners traded their support for a fellow-commissioner’s preferred candidate in exchange for reciprocal favors.50 A substantial minority of commissioners has reported that their commissions were subject to political influences,51 and a majority of commission chairs have indicated that politics entered into their deliberations at least “infrequently.”52 One study has shown that lawyer-controlled nominating commissions produce a disproportionate number of liberal judicial nominees, which the author attributes to the liberal-leaning predilections of the bar.53
Third, to the extent that merit selection systems seek to preserve the pretense of accountability with periodic retention elections, it is no more than that: a pretense. Retention elections are dreary by design. Who wants to go to the racetrack to watch a solitary horse run a time trial to see whether he qualifies to do it again next year? Nobody—and in the context of retention elections, that means nobody is energized enough (p.95) to jeopardize incumbency. As consequence, voter roll-off in retention elections is substantially higher than in contested elections.54 And the average support incumbents receive in retention elections is a whopping 75 percent—far more than the 55–60 percent that would qualify as competitive enough to promote accountability.55
The Case for Incremental Reform
Incrementalists are a motley crew of judicial election skeptics, devotees, and agnostics. The judicial election skeptic would concede that elections have been a fixture of the American judicial selection landscape since the 1840s and as dreadful as they may be, are here to stay. For the skeptic-incrementalist, reforms can make the horrors of judicial elections a little less horrible. The judicial election devotee, in contrast, is at peace with an elected judiciary. But for the devotee-incrementalist, the wonders of judicial elections can be made even more wonderful by the occasional tweak. Judicial election agnostics include the occasional, true nonbeliever, and nominal agnostics whose preferences peek out between cracks in the studied neutrality they seek to preserve in an effort to maintain the appearance of objectivity. The agnostic-incrementalist is a pragmatist who seeks to take whichever system she is handed and make it better, with reforms that stand a realistic chance of implementation.
Incrementalists have advocated numerous reform proposals, three of which have gained at least some traction. First, several states have experimented with systems for publicly financing supreme court elections as a means to diminish the delegitimizing if not corrupting influence of special interest money on judicial races. Judicial candidates have a First Amendment right to solicit financial support from groups and individuals in privately funded campaigns, but candidates may agree to refuse campaign contributions from private sources in exchange for public monies with which to campaign. The American Bar Association’s Commission on Public Financing of Judicial Campaigns endorsed public financing, concluding that “[t]he more money judges receive from public sources, the less they will have to raise from private groups and (p.96) individuals who are interested in the outcomes of cases the judges decide, which will reduce the potential for campaign contributions to influence judicial behavior and address the public perception” of such influence.56
Second, many states have sought to address concerns over the real or perceived influence of campaign contributions on judicial decision-making by imposing campaign contribution limits and disclosure requirements. Modest campaign contributions in amounts too low to create a reasonable suspicion of influence peddling are harmless, and serve no purpose beyond showing support for the candidate and the judiciary of which the candidate is or may become part. Contribution limits restrict campaign finance to these innocuous displays of support. Disclosure requirements, in turn, dull the blade of influence peddling by keeping voters apprised of who is contributing to which candidates, so that voters might hold candidates accountable when the risk of influence becomes unacceptable.
Third, all states have recusal or disqualification rules that can require judges to withdraw from cases for campaign-related bias.57 If eliminating elections is a guardrail at the top of the cliff that protects judges from independence, integrity, and impartiality-damaging plunges, then a rigorous disqualification regime is an ambulance at the base of the cliff that deals with the mess after plunges occur. Put another way, disqualification rules can alleviate problems that arise when campaign-related events compromise a judge’s impartiality in later cases, by forcing the judge to withdraw from those cases.
One such problem has arisen when an issue comes before the court that the judge, as a judicial candidate, pre-committed to decide in a particular way. For example, in 2010, a West Virginia Supreme Court justice disqualified himself (albeit after adverse publicity, and angrily) from a case that challenged the constitutionality of tort reform legislation. As a judicial candidate, when asked for his views on the legislation, he declared, “I will not vote to overturn it. I will not vote to change it. I will not vote to modify it.”58 The justice may have felt that he could be impartial notwithstanding his prior statements, but from the perspective of an outsider looking in, it seems unlikely that a party challenging the (p.97) law could get a fair shake from a judge who had committed himself to rejecting the claim before it had even been filed. Hence, the American Bar Association’s Model Code of Judicial Conduct provides that if a judge, while a candidate, “commits or appears to commit . . . to reach a particular result or rule in a particular way” in a future case, the judge is later disqualified from hearing that case when it comes before the court.59
A second problem that disqualification addresses has arisen when judges are assigned to hear cases in which a party—or someone closely affiliated with a party—has given significant financial support to the judge’s election campaign. In Caperton v. A.T. Massey Coal Co.,60 the U.S. Supreme Court ruled that a West Virginia Supreme Court justice violated a party’s constitutional right to due process of law when he refused to disqualify himself from a case in which the justice had received campaign support from the opposing party’s CEO in amounts sufficient to create a probability of bias. The Court took pains to emphasize that states could avoid due process problems through the simple expedient of establishing their own disqualification rules that subjected judges to recusal before problems reach constitutional magnitude. And virtually every state—including West Virginia—has done just that, by adopting rules requiring judges to disqualify themselves when their “impartiality might reasonably be questioned.”61 Some states have gone further and crafted specific disqualification rules applicable to judges who receive campaign support from parties or their lawyers under circumstances that cast doubt on the judge’s impartiality.62
The case for appointments proceeds from the premise that judges are umpires who can be counted on to call ’em like they see ’em and follow the law only if they do not have voters breathing down their necks, poised to fire judges who make unpopular calls. The case for elections proceeds from the premise that judges are politicians in robes who can be counted on to disregard the law and impose their own ideological preferences (p.98) unless the electorate is there to keep them in check. In the judicial selection holy wars, the two sides defend their causes with a religious fervor to the end of enlightening their adversaries, or failing that, dominating them by force. This unyieldingly binary debate all but cries out for an answer to the question: Whose cause is righteous? As chapter 5 aims to show, the answer is: both and neither.
(1.) See chapter 2, for a description of these five systems and how they evolved in relation to each other, and chapter 3, Tables 3-1 and 3-2 for a summary of which states employ what selection systems.
(2.) American Bar Association Division for Public Education, How Courts Work, last visited Sep. 13, 2018, http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/judge_role.html.
(3.) Chief Justice Roberts, Statement at Nomination Process (Sept. 12, 2005) (transcript available at http://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process).
(4.) Justice Stevens Criticizes Election of Judges, WASH. POST, Aug. 4, 1996, at A14.
(5.) Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office? 48 AM. J. POL. SCI. 247 (2004).
(7.) Richard Caldarone, Brandice Canes-Wrone, & Tom S. Clark, Partisan Labels and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions, 71 J. POL. 560 (2009).
(8.) Sanford C. Gordon & Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q.J. POL. SCI. 107 (2007).
(9.) Carol Savchak & A.J. Barghothi, The Influence of Appointment and Retention Constituencies: Testing Strategies of Judicial Decisionmaking, 7 ST. POL. & POL’Y Q. 394 (2007).
(10.) Republican Party of Minn. v. White, 536 U.S. 765, 804 (2002) (Ginsburg, J. dissenting).
(12.) MODEL CODE OF JUDICIAL CONDUCT, Rule 2.4 (2007). The directive not to be swayed by public clamor first appeared in the 1924 Canons of Judicial Ethics. CANONS OF JUDICIAL ETHICS Canon 14 (1924), http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/1924_canons.authcheckdam.pdf.
(13.) ABA COMMISSION ON THE 21ST CENTURY JUDICIARY, Formal Op. 2 (2003).
(14.) For a discussion of the antagonism directed at lower federal court judges in the southern states during the civil rights era, see JACK BASS, UNLIKELY HEROES (1981).
(15.) Terri Peretti, Does Judicial Independence Exist? The Lessons of Social Science Research, in JUDICIAL INDEPENDENCE AND THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 103, 111 (Stephen Burbank & Barry Friedman eds., 2002).
(16.) John M. Scheb II & William Lyons, The Myth of Legality and Public Evaluation of the Supreme Court, 81 SOC. SCI. Q. 928 (2000).
(17.) Jeffrey A. Segal & Harold J. Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL 17 (1993).
(18.) Chris Bonneau & Melinda Gann Hall, IN DEFENSE OF JUDICIAL ELECTIONS 14 (2009).
(20.) Dmitry Bam, Voter Ignorance and Judicial Elections, 102 KY. L. J. 553, 566–68 (2013).
(21.) For a timeline of the events described here, see A Roy Moore Timeline: From Ten Commandments to Senate Candidate, AL.COM (last updated Dec. 12, 2017, 1:42 PM), http://www.al.com/news/birmingham/index.ssf/2016/05/a_roy_moore_timeline_from_ten.html#0.
(22.) Richard A. Watson & Rondal G. Downing, THE POLITICS OF THE BENCH AND THE BAR 283 (1969) (fewer merit-selected judges rank in lowest quality quartile than elected judges); Malia Reddick, Judging the Quality of Judicial Selection Methods: Merit Selection, Elections, and Judicial Discipline (2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2731018 (merit-selected judges disciplined less frequently in six of nine jurisdictions studied).
(23.) Laurence Baum, Judicial Elections and Judicial Independence: The Voter’s Perspective, 64 OH. ST. L.J. 213 (2003) (discussing data from unpublished paper by Melinda Gann Hall).
(24.) Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40 AM. L. REV. 729 (1906).
(25.) James Podgers, O’Connor on Judicial Elections: “They’re Awful. I Hate them,” ABA J. (May 9, 2009), http://www.abajournal.com/news/article/oconnor_chemerinsky_sound_warnings_at_aba_conference_about_the_dangers_of_s/.
(26.) Republican Party of Minn. v. White, 536 U.S. 765 (2002).
(27.) Joanna Shepherd, Money, Politics, and Impartial Justice, 58 DUKE L J. 623, 669 (2009).
(28.) Stephen J. Ware, Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 30 CAP. U. L. REV. 583 (2002); Eric Waltenburg & Charles Lopeman, Tort Decisions and Campaign Dollars, 28 SE. POL. REV. 241 (2000); Matias Iaryczower & Matthew Shum, Money in Judicial Politics: Individual Contributions and Collective Decisions (2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1998895; Daman M. Cann, Justice for Sale? Campaign Contributions and Judicial Decisionmaking, 7 ST. POL. & POL’Y Q. 281 (2007); Vernon V. Palmer, An Empirical Assessment of the Risk of Actual Bias in Decisions Involving Campaign Contributors (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721665; Chris M. Bonneau & Damon M. Cann, The Effect of Campaign Contributions on Judicial Decisionmaking (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337668; Amon McLeod, Bidding for Justice: A Case Study About the Effect of Campaign Contributions on Judicial Decision-Making, 85 U. DET. MERCY L. REV. 385 (2008); Adam Liptak & Janet Roberts, Tilting the (p.181) Scales?: The Ohio Experience; Campaign Cash Mirrors a High Court Ruling, N.Y. TIMES, Oct. 1, 2006; Madhavi McCall, The Politics of Judicial Elections: The Influence of Campaign Contributions on the Voting Patterns of Texas Supreme Court Justices, 1994–1997, 31 POL. & POL’Y 314 (2003); Mondhavi McCall & Michael McCall, Campaign Contributions, Judicial Decisions, and the Texas Supreme Court, 90 JUDICATURE 214 (2007). A Nevada study found no correlation, and studies in Wisconsin reached mixed results.
(29.) Stephen J. Ware, Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 30 CAP. U. L. REV. 583, 584 (2002).
(30.) Daman M. Cann, Justice for Sale? Campaign Contributions and Judicial Decisionmaking, 7 ST. POL. & POL’Y Q. 281 (2007).
(31.) Chris M. Bonneau & Damon M. Cann, The Effect of Campaign Contributions on Judicial Decisionmaking (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337668.
(32.) Joanna Shepard, JUSTICE AT RISK: AN EMPIRICAL ANALYSIS OF CAMPAIGN CONTRIBUTIONS AND JUDICIAL DECISIONS 1 (2013).
(33.) Justice Sandra Day O’Connor, Introduction to THE NEW POLITICS OF JUDICIAL ELECTIONS 2000–2009 (2010).
(34.) Tort Reformers Score Victories in Midwest Judicial Races, INS. J. (Nov. 22, 2004), http://www.insurancejournal.com/magazines/features/2004/11/22/49934.htm.
(35.) Charles Gardner Geyh, Why Judicial Elections Stink, 64 OH. ST. L.J. 47 (2003).
(36.) James Gibson, ELECTING JUDGES: THE SURPRISING EFFECTS OF CAMPAIGNING ON JUDICIAL LEGITIMACY 105–28 (2012).
(37.) James L. Gibson & Gregory A. Caldeira, CITIZENS, COURTS, AND CONFIRMATIONS: POSITIVITY THEORY AND THE JUDGMENTS OF THE AMERICAN PEOPLE (2009).
(38.) Mark Jonathan McKenzie & Ryan Rebe, Trial Court Campaign Messaging in a Post-White Environment, in JUDICIAL ELECTIONS IN THE 21ST CENTURY 158, 169–70 (Chris W. Bonneau & Melinda Gann Hall eds., 2016).
(40.) This is essentially a one-sentence summary of Bonneau and Hall’s argument in defense of judicial elections—an argument they support with extensive reference to the social science literature, much of which they have authored.
(42.) See generally, Chris W. Bonneau & Damon M. Cann, VOTERS’S VERDICTS: CITIZENS, CAMPAIGNS, AND INSTITUTIONS IN STATE SUPREME COURT ELECTIONS (2015).
(43.) Jazmine Ulloa, As Brock Turner Is Released, Politicians Demand Ouster of Judge in Stanford Rape Case, L.A. TIMES (Sept. 2, 2016), http://www.latimes.com/politics/la-pol-ca-aaron-persky-recall-brock-turner-release-20160902-snap-story.html.
(44.) Matt Ferner, Judge Handcuffs Defense Attorney in Court to Teach Her “a Lesson” for Speaking Out, HUFFINGTON POST (May 27, 2016), http://www.huffingtonpost.com/entry/judge-handcuffs-defense-attorney_us_5748744ee4b0dacf7ad4bea3.
(45.) Matt Ferner, Las Vegas Judge Who Humiliated Defense Attorney Loses Election in a Landslide, HUFFINGTON POST (Dec. 19, 2016), http://www.huffingtonpost.com/entry/conrad-hafen-judge-loses_us_57618da5e4b09c926cfdd61f.
(46.) Henry R. Glick & Craig F. Emmert, Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Judges, 70 JUDICATURE 228 (1987).
(47.) Greg Goelzhauser, CHOOSING STATE SUPREME COURT JUSTICES: MERIT SELECTION AND THE CONSEQUENCES OF INSTITUTIONAL REFORM 110 (2016).
(48.) Stephen J. Choi, Mitu Gulati & Eric Posner, Professionals or Politicians: The Uncertain Case for an Elected Rather than Appointed Judiciary, 26 J.L. ECON. & ORG. 290 (2010).
(50.) Richard A. Watson & Rondal G. Downing, THE POLITICS OF BENCH AND BAR 107–11 (1969).
(51.) Allan Ashman & James J. Alfini, THE KEY TO JUDICIAL MERIT SELECTION: THE NOMINATING PROCESS 75 (1974).
(52.) Joanne Martin, MERIT SELECTION COMMISSIONS: WHAT DO THEY DO? HOW EFFECTIVE ARE THEY? 20–22 (1993).
(53.) Brian T. Fitzpatrick, The Politics of Merit Selection, 74 MO. L. REV. 675 (2009).
(56.) ABA Comm’n on Pub. Fin. of Judicial Campaigns, Formal Op. 30 (2002).
(57.) The general, and all but universally adopted disqualification standard, calls upon judges to disqualify themselves when their impartiality “might reasonably be questioned.” MODEL CODE OF JUDICIAL CONDUCT, Rule 2.11(A) (2007).
(58.) Tony Mauro, New Recusal Controversy in West Virginia High Court, THE BLT (Sept. 24, 2010), http://legaltimes.typepad.com/blt/2010/09/new-recusal-controversy-in-west-virginia-high-court.html.
(59.) MODEL CODE OF JUDICIAL CONDUCT, Rule 2.11(A)(5) (2007).
(60.) Caperton v. A T. Massey Coal Co., 556 U.S. 868 (2009).
(61.) MODEL CODE OF JUDICIAL CONDUCT, Rule 2.11(A) (2007).
(62.) See, e.g., GA. CODE OF JUDICIAL CONDUCT, r. 3.9(B) (2014) (subjecting judges to disqualification for campaign contributions or support under specified circumstances, with commentary creating a rebuttable presumption against disqualification for contributions below the statutory contribution limit).