Judges Securing Their Own Jobs

As we observe a uniquely American holiday, it's worth examining another American peculiarity - the popular election of judges. As this article from Sunday's New York Times explains, we are among a tiny group of countries - the other two are Switzerland (in some cantons) and Japan (though the elections are mostly formalities) - that leave judicial selection to the whim of electoral politics.

As odd as it seems, there is a theory behind the practice:

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

'If you want judges to be responsive to public opinion, then having elected judges is the way to do that,' said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

87% of all state judges face elections of some sort (federal judges, of course, are appointed by the President with the consent of the Senate). That responsiveness can lead to some troubling results in particular cases:

judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that 'all judges, even the most punitive, increase their sentences as re-election nears,' resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.

In an age when those extra years, in addition to working a serious injustice against the defendants who bear them, will cost taxpayers upwards of $25k a year, should we change the way we do things?

And if so, how? The Times article focuses on the French system, in which judges are mostly civil service technocrats, but fails to mention that French law (and most European systems) is based on civil codes and judges there don't do the same common law analysis that judges in the US or UK do. Of course, the Brits appoint their judges:

In common law countries, judges are generally appointed by executive branch officials, though lately judicial commissions made up of lawyers and lay people are taking a larger role in the initial selection of candidates. Scotland adopted that method in 2002, and England and Wales in 2006.

Alan Paterson, a Scottish law professor who serves on the Judicial Appointments Board for Scotland, said his country’s system was transparent and worked well, though he acknowledged that the idea behind judicial elections was attractive.

'Part of me likes it,' he said. 'It follows from the separation of powers. But in practical terms, it’s very difficult. They have to raise a lot of money.'

'The theory is a nice theory,' he said. 'The practice of it is unworkable. We’re not going to do it.'

The question is, in land where we are living with the unworkable practice, what will it take to change it?