Mimesis Law
18 February 2020

Debate: The Crowd Shouldn’t Vote On The Umpire

October 20, 2016 (Fault Lines) — Ed. Note: In light of the attack ads against a candidate for the Montana Supreme Court candidate, we have charged Noel Erinjeri and Chris Seaton to debate the question: Given the attack on Montana Judge Dirk Sandefur, should judges be elected?  This is Noel Erinjeri’s argument:

Quis custodiet ipsos custodes? Who watches the watchmen?[1]

The basic problem of public affairs is how to answer that question. The fundamental insight of the English (and later, American) systems is that they were the first to draw a distinction between the State and the Law. The English did it gradually, starting in 1215 and continuing through 1645, 1689, and up through the present; we did it all at once, in 1789.

Any schoolchild can tell you about the three branches of government and about checks and balances. And the judicial branch needs checks and balances just like the other two. I’ve written a number of times about the need for an informed electorate, because people knowing what the hell they’re voting about is the ultimate check and balance. That said, this shouldn’t apply to judges.

The political branches, at bottom, are advocates. Presidents, congressman, governors, all the way down to the smallest village council; they are there (ideally) to do what’s best for the people. And if the people disagree about what’s best, or with how the politicians are going about it, they vote the bums out. That’s not why judges are there. Judges are not advocates. They are arbiters. As such, they should be insulated as much as possible from the political consequences of displeasing the electorate (meaning, having to run for re-election) so that they may focus on the legal consequences of their decisions.

Phrased another way, a politician’s job is to give The People what They want, or at least what They need. A judge’s job has nothing to do with The People. In fact, oftentimes a judge has to deny The People what they want on behalf of the people who are appearing before him.

The biggest problem with electing judges is that the electorate does not have the tools to make a knowledgeable decision. Consider the case of Judge Aaron Persky. Persky had been on the bench since 2003, yet no one outside the Santa Clara County legal community had ever heard of the guy until the Brock Turner case. And yet, the mob wants him off the bench because of one bad decision in which he showed (an excessive amount of) mercy.

What does the general public know about the thousands of other defendants he’s sentenced? Is he a hanging judge, reflexively maxing out everyone who isn’t a fellow Stanford athlete? Is he a soft touch, assessing fines and community service for mass murder? I don’t know, and neither do the morons who want him off the bench. But the prosecutor and public defender in Santa Clara County both agree that he’s a good judge, and these are two groups of people whose entire job is to disagree with each other. It’s a very bad idea to elect a judge when voters don’t have 99.9% of the necessary information and can rely entirely on whatever clickbait fueled outrage happened across their Facebook feed.

The debate over judicial elections comes down to a question of accountability. Lifetime appointments, like the federal system, could lead to robed aristocrats issuing diktats that have nothing to do with the law and everything to do with their policy preferences. Making judges run for election lead to the danger of judges doing what’s popular at the expense of what’s right, or at least what’s legal. Nevertheless, it doesn’t have to be one or the other.

A hybrid system is the Missouri Plan, which about half the states use variants of. It goes like this: when judicial vacancy occurs, a committee established for that purpose takes applications from any lawyer who meets the minimum qualifications for the job. The details of who’s on the committee varies, but typically it consists of an equal number of lawyers and non-lawyers along with a judge as the chairman. The committee selects a slate of three applicants and presents it to the Governor, who makes the final selection. Judges then face a “retention election,” in which voters don’t decide between candidates but only whether the judge should keep his seat. If she loses (which is pretty rare), the committee picks a new list of three, and so on.

Of the election, appointment, and hybrid systems; the appointment system is the best (though the hybrid system is a decent compromise). While it’s inevitable that some politics will enter into the choosing of judges, the key is what happens after the judge takes the bench. If he has to answer to the electorate every four years, it provides an incentive to pander to a public who, for the most part, don’t understand the law or how it works. But if his job and his position is secure, we can at least be sure that whatever decision he makes isn’t motivated by the fear of losing a paycheck.

Rebuttal: Chris writes: [T]he only solution that makes sense is a system where judges are held accountable in elections, just like every other member of our government.” (Emphasis added.)

Except, judges are not like every other member of our government. Politicians serve the people. Judges serve the law. When judges are forced to run for election, they must serve two masters, and a noted legal scholar already pointed out why that’s a bad idea.

Sur-Rebuttal: Persky was elected. If elections are supposed to prevent Brock Turners, they’re doing a bad job of it.

[1] Literally, “Who will guard the guardsmen themselves?”

6 Comments on this post.

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  • SPM
    20 October 2016 at 11:23 am - Reply

    The problem is that there are certain philosophies of statutory interpretation that go far beyond the actual text of the law. In those situations, it can be argued that the Judge departs from his role of “umpire” and has crossed the border into the role of “politician.” And if Judges are acting as politicians, they should be treated the same as the executive or legislative branch when it comes to holding office.

    Those who make law or government policy – regardless of their branch of government – should be elected by the people.

  • Richard G. Kopf
    20 October 2016 at 11:29 am - Reply


    You write: “Lifetime appointments, like the federal system, could lead to robed aristocrats issuing diktats that have nothing to do with the law and everything to do with their policy preferences.”

    I respond: Federal judges, having lifetime appointments, save us from democracy.

    All the best.


    • Noel Erinjeri
      20 October 2016 at 1:21 pm - Reply


      I couldn’t agree more. That paragraph was about contrasting the two systems, not earnest criticism.


  • Greg Prickett
    20 October 2016 at 2:17 pm - Reply

    Judge Kopf is exactly right.

    As I posted at Chris’s side of the debate:

    “Judges should not be running for election, re-election, or retention. They should be appointed. At the state level, you could have varying terms, say 8 years for a trial court of general jurisdiction, 12 years for an intermediate appeals court, and 16 years for the state supreme court.

    But you don’t make them accountable to the people. Judges are supposed to protect the rights of individuals against the tyranny of the majority. An elected judge is not going to toss out school prayer and have a chance of reelection in the Bible Belt. The political view on guns in Chicago, NYC, or California is going to be significantly different than in Texas or Nebraska.”

  • jdgalt
    21 October 2016 at 10:27 pm - Reply

    The voters have been effectively choosing judges (badly) for about a century at least, by voting in presidents and members of Congress who will put New Dealers (who misinterpret the Constitution) in courts rather than bother to use the proper amendment process. Giving that power directly to voters can’t possibly be worse.

    As far as the best way to protect those disadvantaged by the system, that’s obvious (to me at least). First strip everyone in the system — cops, prosecutors, judges, and legislators — of all immunity for unconstitutional acts. Then give ordinary people the right to prosecute any crime that harms them, including by an official. Groups such as ACLU and NAACP, but also IJ and PacificLegal, can then move in and start the necessary massive purges.

  • Judge Santino's CDL-Hatin' Smear Campaign – Fault Lines
    14 March 2017 at 10:28 am - Reply

    […] 13, 2017 (Fault Lines) — Electing judges is a pretty bad idea, but most jurisdictions have rules that at least nod towards the principle that judges are not (or […]