Mimesis Law
16 November 2019

Debate: Electing Judges Is America At Its Finest

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 Chris Seaton and Noel Erinjeri to debate the question: Given the attack on Montana Judge Dirk Sandefur, should judges be elected?  This is Chris Seaton’s argument:

The Judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.

—Alexander Hamilton, The Federalist Papers No. 78

When Alexander Hamilton penned the above words, it’s reasonable to assume he envisioned a fair and impartial judiciary that would stick to its assigned duty of interpreting and applying laws when needed. We carry that vision with us today, and “a fair and impartial judiciary” is etched into just about every state’s Code of Judicial Conduct. It’s a noble vision, but a flawed one, and the best way to fix the flaw is a system of electing judges.

The expectation of a “fair and impartial judiciary” is flawed because judges are human beings who can’t be expected to shed their biases and prejudices the moment they put on a black robe. Judges also carry enormous power over our lives, liberties and properties. Sometimes it’s too much and they develop what trench lawyers call “black robe syndrome,” where the judge strays from their expected duties and issues whatever ruling strikes their fancy. In this case, an election system would serve as an important “check” on the judiciary so the people had a say in who essentially “ruled” them.

Most people familiar with the practice of law don’t like electing judges. They prefer appointments, as this theoretically makes it easier for a jurist to apply the law in principled ways unpopular with the general public. The biggest problem with appointments is the public has no say in who is best fit to serve as part of the government’s “most dangerous branch.” It prefers the judgment of those in power against the will of the people, and sends the message “those who govern you possess better judgment than you,” over who is most fit to have the final say over a critical moment in your life.

Another problem with appointments is the person or body making the appointment might not understand the dynamics of the area in which an appointed judge will preside. Just using a local example, the urban environment of Nashville is completely different from the rural area of Mascot, Tennessee. Appointing the wrong lawyer to the bench could result in disastrous consequences during the next general election. Governors and legislative bodies could find angry voters ready to drive them out of office for the wrong decision.

Lack of oversight is another big issue when it comes to appointing judges. A bad ruling is subject to the review of a higher court, and chances of a reversal are a crapshoot at best. Removal from office is another matter entirely if judges are appointed. Absent the icy hand of death, the only other option is the discretion of an oversight group in every state with the authority to issue sanctions or remove judges when they see an abuse of power. These organizations have names like “The Judicial Qualification Commission” or “Board of Judicial Conduct,” and it’s hard to put public trust in a group like this when it’s comprised of members appointed by a legislature that might have no qualms about committing misconduct when they’re not watching other judges.

With these problems, the only solution that makes sense is a system where judges are held accountable in elections, just like every other member of our government. Giving the people the final say in who holds power over the most important aspects of their lives means we respect the original intent of those who wrote our nation’s Constitution, and abstain from allowing judges to rule us. It also provides a “check” to the judiciary if and when the power of the black robe and gavel gets to a jurist’s head. The question becomes how best to handle such an election.

This year has proven people don’t always vote on facts, logic, or reason. And it’s pretty clear American elections are prone to special interests and outlandish sums of money affecting any potential outcome. These are simply facts of life which any person desiring the burden of the black robe must come to accept, and plan accordingly if they desire a spot in the judicial branch of our government.

Electing judges isn’t perfect by any means. However, it allows the people a say in who holds a crucial component of their lives in the balance. It’s one that gives the power to the people, instead of a ruling class that wants to substitute its preferences for those who put them in office. In summary, it’s the most American way of ensuring a “fair, impartial judiciary.”

Today’s decree…of constitutional revision by an unelected committee of nine…robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Antonin Scalia, dissenting in Obergefell v. Hodges

Rebuttal: Noel’s suggestion of the Missouri plan sounds reasonable. It sounds like a good idea. And it’s plans like that which place individuals like Judge Aaron Persky on the bench and give him enough latitude to empathize with a Brock Turner, so a sexual assaulter is spared any “severe impact.”

I’m grateful for Noel bringing up Judge Persky, as he’s a prime example of someone with power and influence picking his personal preferences over those of the people in the county he’s meant to serve. Right now there’s a movement underway facing difficult hurdles to remove Judge Persky from the bench, because he failed at his job in two respects. First, he didn’t administer justice, and second, he didn’t listen to the people.

Judge Aaron Persky is the perfect example of why judicial elections are necessary. If someone wearing a black robe generates enough outrage with a ruling, “empathy” aside, the public should be able to vote the bastard off the bench. Maybe then jurists will start doing their job and pay attention to interpreting the law, as opposed to the alleged “pandering” Noel thinks an election system would bring.

Sur-Rebuttal: And if it was a “bad job,” it’s the public’s prerogative to correct the mistake. Not someone from the Governor’s office or a legislative body who knows better.

5 Comments on this post.

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  • Greg Prickett
    20 October 2016 at 2:15 pm - Reply

    Sorry Chris, but you’re wrong.

    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.

    Judges should apply the law, not popular political positions. They can’t do it if they are elected.

    • CLS
      21 October 2016 at 2:55 pm - Reply

      Two egregious problems with your response. The first is your apology for critiquing my debate argument. I will not accept it, as none was needed. The second is your delusion that I am wrong.

      While appointment systems are wonderful in nature, they create too many problems for removal when the judge does something that truly merits their removal. The people must govern themselves, and that’s why elections work best.

      Judges can apply the law over popular political positions and still retain office. If it happens in the Bible Belt, it can happen anywhere.

      • Greg Prickett
        21 October 2016 at 3:32 pm - Reply

        Chris, they have meds that can help you. Just repeat over and over that Greg is never wrong…

        Besides, the best example of popular political positions over the law is in the dead center of the Bible Belt, and he’s named Roy Moore, who is (no surprise) refusing to move out of his office now that he’s been suspended…

        That’s the type of jurist you get from elections, and it’s not like the people didn’t know what they were electing.

  • drouse
    21 October 2016 at 10:31 am - Reply

    Two good examples that argue against judicial elections. Roy Moore and the Wisconsin Supreme Court.

  • Keep Big Money Out of Local Prosecutor Races
    22 November 2016 at 9:17 am - Reply

    […] we tell the world the wonders of elections and democracy, we have slowly edged away from direct elections of certain public offices like judges. Many cities have decided that unelected professionals are better than some person who must face […]