Friday, October 5, 2012

Q Day 6: State Judge Selection

Respectful Opposition asks,
Do you favor increased or decreased politicization in the realm of judge selection on a state level? My state, Missouri, is considering a referendum that would make their selection a much more partisan process. My law professor father hates it, and my political science professor loves it.
I've never understood why the federal system isn't the best one for the states: have the governor nominate them, have the state senate confirm them, end of story. I don't think it's a horrible violation of democracy or justice, so I'm okay with states choosing their own path on it, but if it were up to me that's probably how I'd do it.

In particular, I don't see how voting for them makes any sense. I do think that voters are capable of choosing between two judicial candidates just as they can choose between two legislative candidates...but I also think it's entirely unrealistic to expect voters to make 30, 40, 50 or more decisions, and I don't see any particular reason why elections should produce better judges.

All that said: nomination by governors and confirmation by legislatures is certainly "political," and may even be partisan. Lots of politics out there that's not electoral politics.

But, no, I don't like judicial elections.


  1. While you state that you "don't see any particular reason why elections should produce better judges", do you have any reason to think appointed one are better?

    If not, then shouldn't we go with democracy in the case of a tie?

    I don't know if I have a preference, and while I might intellectually side with the appointed route myself, I don't think I have any evidence to support the position.

  2. JB: What about Missouri's current system? Missouri has a nonpartisan commission send a list of potential judges to the governor, who then makes his selection from that list:

    1. Eh. What I said above: I would do it the way the Feds do, but I'm fine with local variation.

  3. I see plenty of reasons why elections would be terrible. INSANELY low information about the candidates, making ads that much more powerful. Policies produced largely outside of public consumption (though public, outside of major cases, few pay any attention to local trials). The role of the judiciary in our democracy as the check against majority rule/tyranny. The relatively easy to achieve and serious consequences of corruption in one individual.

    Electing judges is, in my mind, quite possibly an even worse idea than propositions. And I despise propositions.

  4. When I lived in Michigan, I had to vote for Supreme Court justices. I agree 100% with Matt Jarvis about the low level of information available to make a decision. I once did an informal poll of friends, asking how they chose. Typical responses included:

    - straight party line (though party isn't indicated on the ballot, so you have to do some research)
    - Random selection based on how "attractive" the name sounds
    - Always choose the incumbent
    - Always choose the non-incumbents

    No one I spoke to felt they knew enough about qualifications or judicial philosophy to use those factors in making a decision.

    It was even worse voting for Trustees of the state universities. I generally voted for the candidate of the Socialist Labor Party, as a protest at being asked to choose among names I had never heard of.

  5. Another variation that's used in some states is to have appointed judges but then to have periodic confirmation elections in which they must run in order to remain judges. I don't know if it's an improvement, but it's out there so I thought I mention it.

    What really turned me against judicial elections was that West Virginia case. A company (I think it was Massey Energy of exploding coal mine fame) was losing a case in the WV Supreme Court so they poured money into the campaign of an opposition candidate who won and then threw the case out.


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