Monday, October 12, 2009
Judicial elections seem to be the hot topic of the moment. The Blog of Legal Times reports that a panel at last weekend's meeting of the American Academy of Appellate Lawyers discussed the topic in depth. The speakers quoted in the Blog of Legal Times were in favor of judicial elections. The judges stated that judicial appointments are equally as political as judicial elections. Moreover, they asserted that judicial elections can bring "accountabl[ity]" and "diversity" to the bench.
These are interesting points, but they may not be an accurate or complete view of the issue. Where "accountability is concerned," as I recently posted, recent research shows that elected judges do in fact respond to the public will and vote accordingly. That seems to support the notion that the elections increase judicial accountability to the public. However, this is not a complete view of the issue as the question is whether we want judges to have that sort of accountability or whether we prefer methods that might provide increased judicial independence. The system of judicial appointments is certainly political, but the real issue is what happens once a judge is on the bench. With a lifetime appointment, beholden to no one, a judge might buck tradition and cast an unpopular vote. As Justice O'Connor is fond of saying, if judges were beholden to the public will, the Supreme Court would have reached the opposite conclusion in Brown v. Board of Education. Thus, the central question is, as ever, how much do judicial elections interfere with judicial independence. As more studies on this topic are performed, the answers will become clearer.
The speakers also suggested that judicial elections increase the diversity of the bench. This question might be more answerable than the previous question. Both a city-wide study in Chicago, Illinois and a state-wide study of Texas indicate that racial minorities have difficulty in judicial elections absent, perhaps, racial gerrymandering. Of course, there are other types of diversity that matter on the bench - life experience, class diversity, and the like. But the Texas study indicated that those most likely to prevail in judicial elections are "well funded, well connected lawyers with significant private law experience." This summary of likely candidates does not lead one to believe that diversity of either class or experience is key. If the two studies I found in only a brief period of research cast even a small doubt on the diversity rationale, I am certain the data found in in the course of a more thorough review of the issue could lead to further reconsideration of the idea.
There is likely no "best" way to select judges. However, as the conversation about judicial selection continues, we should listen carefully. Judges occupy a critical and unique role in our system of government. For that reason alone, this conversation needs to continue so that we can shed as much light on as many systems of judicial selection as possible. The more we learn, the more we can do to improve all of the selection systems.