How Should State Judges Be Selected?

Justice Sandra Day O’Connor has a clearly defined post-retirement mission: Eradicate state judicial elections. While law and courts enthusiasts await the upcoming confirmation process of Supreme Court nominee Elena Kagan, Justice O’Connor continues to push for the end of judicial elections in the states. Her latest effort at advancing this agenda includes an op-ed in the New York Times (from May 21). O’Connor rehashes the normative arguments made previously by herself and other opponents to judicial elections: (1) lifetime appointed judges are not accountable to voters, which preserves judicial independence and impartiality and allows judges to be accountable to the law only; and (2) elected judges “are susceptible to influence by political and ideological constituencies,” which is antithetical to judicial impartiality. In her op-ed, O’Connor essentially recommends the Missouri Plan, or the merit system of selection:

A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system — now used in some form in two-thirds of states — protects the impartiality of the judiciary without sacrificing accountability.

Justice O’Connor’s arguments — and the arguments of reformers more generally — are strong and persuasive. But before you wholeheartedly subscribe to these arguments, I encourage you to read a provocative new book by political scientists Chris W. Bonneau and Melinda Gann Hall titled, In Defense of Judicial Elections (2009, Routledge Press; Amazon link HERE). Like O’Connor, Professors Bonneau and Hall also have a mission: To eradicate myths about judicial elections by empirically analyzing the claims put forth by judicial elections opponents, such as O’Connor. Bonneau and Hall extensively examine data from state supreme court elections from 1990-2004.

Here is the book blurb from Routledge:

One of the most contentious issues in politics today is the propriety of electing judges. Ought judges be independent of democratic processes in obtaining and retaining their seats, or should they be subject to the approval of the electorate and the processes that accompany popular control? While this debate is interesting and often quite heated, it usually occurs without reference to empirical facts–or at least accurate ones. Also, empirical scholars to date have refused to take a position on the normative issues surrounding the practice.

Bonneau and Hall offer a fresh new approach. Using almost two decades of data on state supreme court elections, Bonneau and Hall argue that opponents of judicial elections have made—and continue to make—erroneous empirical claims. They show that judicial elections are efficacious mechanisms that enhance the quality of democracy and create an inextricable link between citizens and the judiciary. In so doing, they pioneer the use of empirical data to shed light on these normative questions and offer a coherent defense of judicial elections. This provocative book is essential reading for anyone interested in the politics of judicial selection, law and politics, or the electoral process.

Click HERE for a book review by Salmon A. Shomade.

One of the themes (among many others) that Bonneau and Hall’s book reminds us of is that no matter how judges are selected (be it judicial elections or the “merit system” for state courts of last resort or the nomination and confirmation processes for federal judges), we can be assured of one thing:  judicial selection is always a political process.

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1 Response

  1. ohwilleke says:

    FWIW, the “merit” system used in Colorado which is the kind recommended, works very well, although the retention election feature is useless.

    My experience in New York State is that the experience with elected judges there is a dismal failure. There are many instances were judicial elections are simply random; based on inaccurate assumptions flowing from nothing more than the name on the ballot.

    Empirical evidence that purports to show with empirical evidence that judicial elections do something as ponderous as “enhance the quality of democracy and create an inextricable link between citizens and the judiciary” are rightly viewed with suspicion. Last time I checked, there wasn’t an SI unit for either.

    I also have doubts about the notion that a date set about state supreme court elections that is used by the book has much relevance to a judicial election landscape in which the overwhelming share of elections are of little known local trial judges who are deeply constrained by judicial ethics and custom from commenting on any of the issues that matter to the citizens.