Judicial elections are deeply controversial in the legal world. The United States is one of only several countries -the only other prominent example being Japan- that incorporates public elections into some of its judicial system, setting it apart from most other nations. Thirty-nine states hold judicial elections in the U.S., comprising most judgeships across the country. Rules for this electoral system also vary within states; there are several types of appointment and election methods for selection of judges. These methods include partisan or nonpartisan judicial elections, selection by state legislature, or gubernatorial appointment. Nominees can also be selected from a list of potential candidates selected by a special committee. This lack of uniformity across the United States creates a type of cognitive dissonance within judicial politics, resulting in a system that simultaneously endorses two very different schools of thought. Elections can influence what sort of judges take power and can influence the decisions of those already on the bench. Some argue that elections give judges accountability to the public, while others believe that judges are accountable only to the law. Each argument has its proponents and rests on a logical foundation, but neither is perfect.
For judgeships on the federal level and in a few states, direct appointment is standard practice. On the state level, governors appoint most judges, but local regulations on term restrictions can vary. In New Jersey, for example, judges are re-appointed after seven years and are forced towards retirement at the age of seventy. In most other cases, however, judges are appointed for life. Proponents of judicial appointment argue that giving judges life terms insulates them from outside influence and encourages increased responsibility to the law. A lack of public pressure to make certain decisions may be an effective way to ensure an independent judiciary. It also keeps politics away from informing interpretation of the law, at least to some extent. While no one can claim to be completely unbiased, proponents of judicial appointment argue that it keeps judges objective. Also, commissions that select judicial candidates are better informed than the general public, which would be more inclined to vote by personal bias.
While judicial appointment has many appealing aspects, some see it to be flawed. Opponents of appointment argue that it is an undemocratic system that lacks proper accountability to the public. The judiciary often acts as a strong check on the ambitions of the other branches of government, so to have judges owe their employment to other officials could be a conflict of interest. While term restrictions do exist in some state-level appointment systems, it is reasonable to think that a judge could act irrationally while on the bench without checks, or the power to remove him or her. Judges can be impeached, but in an appointment system there is no other way to remove a judge without conviction for serious crimes or proof of mental illness.
Electing judges has been standard procedure in most U.S. states for as long as the judicial system has existed, and will likely remain that way for the foreseeable future. Proponents of elections argue that it holds judges more accountable to the public and makes their decisions more calculated. This argument notes that because judges are public servants, they should be influenced by the will of the people. Election of judges is certainly more democratic than an appointment system, and puts an electoral check on the power of other branches of government to dominate the judiciary. Judges, when chosen by election, are forced to appeal more to the people whom they serve, and are therefore more representative of their judicial districts.
Many of the disadvantages associated with judicial elections are similar to those of any other election, but some issues are unique to the election of judges. Various studies have been conducted to assess how judicial election impacts the way judges rule, and the results are often shocking. Firstly, campaign contributions create a direct conflict of interest within the court; those who contribute are often those who will appear before a judge. In one especially egregious case, a Pennsylvania traffic court judge directly asked bikers for contributions because they would need his “hook-up.” While directly soliciting campaign contributions is now illegal for judicial candidates as decided by the Supreme Court’s Williams-Yulee v. Florida Bar ruling, it is still possible for judges to be influenced by such contributions. Other contributors often include attorneys, who are pressured to donate to judges seeking reelection. Regulations on judicial campaign contributions vary by state, but studies suggest that they are often enough to sway a judge’s ruling.
Another important disadvantage of judicial elections is their impact on sentencings and other duties carried out by sitting judges seeking reelection. A key strategy in judicial campaigns is attacking the rulings of a sitting judge, especially for not being “tough on crime.” In turn, sitting judges campaign on how harshly they sentenced heinous offenders, such as murders and rapists. According to the Brennan Center for Justice, “Ten prominent empirical studies examining the relationship between judicial elections and criminal case outcomes all found that retention and re-election pressures impact judges’ rulings—to the detriment of defendants.” Based on this data, it would seem that elections encourage judges to sentence defendants to death or atypically long prison terms, especially in states where being “liberal on crime” could be a liability for re-election.
Ultimately, one’s opinion on which system of judicial selection depends on certain core ideals about how justice should operate. Each side of the argument has clear rationale, and the advantages and disadvantages of each are apparent. At the core of this debate is a search for a balance between more impartial justice that is fair but undemocratic, and justice that is unfair but democratic. Is justice an instrument of the will of the people, or of the law?