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Politics

Should Judges Be Elected or Appointed?

The popular election of judges opens up the judicial branch to the same partisan and commercial pressures that the other branches experience.

Q: The state where I live elects all its judges by popular vote, and their campaigns accept large donations from corporate and labor interests that often end up having business before the same judges. Some of the judges don’t even recuse themselves. What do you think about this?

It’s unethical for judges to hear cases in which they have a conflict of interest, and accepting campaign contributions from parties in a case certainly meets that test. (Besides, such tainted decisions are likely to be overturned on appeal.)

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There are people who argue that electing judges from a general pool of people who want to run is pure democracy. This argument is especially used to argue against the lifetime appointment of federal judges, who serve without any public opportunity to review their performance except for invoking the rarely used power to remove them by impeachment.

But I think that popular election of judges is a bad idea, and it opens up the judicial branch to the same partisan and commercial pressures that the legislative and executive branches of government already experience.

It is far better for the chief executive (governor, mayor or county executive) to nominate judges from a list of lawyers vetted for their professional qualifications and judicial temperament. More than two-thirds of states have some sort of merit selection system, and Sandra Day O’Connor, the retired Supreme Court associate justice, advocates that the remaining states adopt one, too.

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In her ideal system (modeled after that of her home state, Arizona), prospective judges apply to a nonpartisan nominating commission on which non-lawyers predominate. Candidate applications and credentials may be viewed by the public online, all commission hearings are open, and public comment is invited.

The commission produces a short list of qualified candidates, and the governor selects from that list to fill vacancies. Rather than being lifetime appointees, judges are subject every few years to a performance evaluation and a public vote on whether to reappoint them or turn them out. It’s impossible to take politics out of the process completely, but this sounds to me like a good system.

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