ELECTED JUDICIARY

Federal judges are appointed by the President, with the advice and consent of the Senate. Appointment is for life. Although there was substantial disagreement among the delegates to the constitutional convention of 1787 about how to select judges, alexander hamilton's proposal for lifetime presidential appointments ultimately prevailed and has remained intact for two centuries.

This system was not without its critics, however. Chief among them was thomas jefferson, who argued that the independence of the judiciary should be subject to the people's will. While President, Jefferson urged that federal judges should be removed from office upon the recommendation of Congress to the President. In his old age, Jefferson expressed regret that the Constitution did not provide for the removal of judges on a simple majority vote of the legislature, the branch most responsive to the public will. Many historians have attributed Jefferson's antipathy toward the judiciary to his personal animosity toward his distant cousin, Chief Justice john marshall.

Initially, the states also established appointive systems for the selection of judges. Five states entrusted the appointive power to the governor, and eight vested the appointive power in one or both houses of the legislature. To this day, the legislature selects most judges in Connecticut, South Carolina, and Virginia, and state supreme court justices are elected by the legislature in Rhode Island.

Gradually, however, states began adopting systems by which judges were popularly elected. Public perception that property owners controlled the judiciary led to reform, initially at the lower trial court levels. In 1832, Mississippi became the first state in which all judges were popularly elected. An electoral system was adopted in New York at the New York Constitutional Convention of 1846. By the time the civil war began, twenty-four of the thirty-four states had established elected judiciaries. Newly admitted states all adopted popular election for most judges.

Disenchantment with the popular election of judges grew during the latter half of the nineteenth century. Judicial candidates were invariably selected by political machines, which typically controlled them after their election. Judicial corruption and incompetence became commonplace. In 1906, in his classic address on the "Causes of Popular Dissatisfaction with the Administration of Justice," roscoe pound claimed that "putting courts into politics, and compelling judges to become politicians in many jurisdictions … has almost destroyed the traditional respect for the bench." By the turn of the century, several states converted their judicial elections into nonpartisan races. Today, nonpartisan elections are used to select most or all judges in seventeen states. Only thirteen states still utilize partisan elections to select most or all judges.

A return to the appointive system, utilizing a commission to make nominations, was endorsed by the American Bar Association in 1937. Three years later, Missouri became the first state to adopt this scheme, since known as the Missouri Plan. Thirty-one states now use some variation of the plan for selection of at least some of their judges. In many of these states, the appointment is not for life, however. The judge serves a limited term and must face the voters in a retention election. Normally, retention elections are uncontested. In 1986, however, a well-financed campaign against the retention of three justices of the state supreme court in California succeeded in removing them from the court.

The rising cost of election campaigns for judicial offices has led to increasing concerns about the propriety of campaign fund-raising by judges. In many states, million-dollar campaigns for state supreme court seats represent the largest share of judicial campaign expenditures and large corporations are major contributors to the campaigns. In 1986, for example, five justices of the Texas Supreme Court received $387,700 in campaign contributions from Texaco and Pennzoil while a lawsuit between them was pending before the court.

Unfortunately, the debate between proponents of judicial independence and those who exalt judicial accountability frequently masks a hidden agenda. Thus, in one era, those with a liberal agenda decry the entrenched power of a conservative judiciary; in another era, liberal judges are defended with fervent loyalty to the concept of judicial independence.

At a time when political campaigns have been reduced to raising large campaign chests to finance blizzards of fifteen-second television commercials, however, the wisdom of subjecting judges to election contests must be seriously questioned. In political campaigns the complex issues being decided by judges tend to be oversimplified. Frequently, an emotional issue such as capital punishment or abortion becomes the campaign's focal point. The risk becomes substantial that judicial outcomes will become simple reflections of the prevailing political winds. The death penalty offers a startling example. The three justices removed from the California Supreme Court in 1986 were subjected to a bitter campaign that characterized voting for their removal as "three votes for the death penalty." After they were replaced, the affirmance rate in review of death penalty judgments jumped from 7.8 percent to 71.8 percent, with very few precedents being overtly overruled. Nationally, there is a close correlation between the method of selection of justices of a state supreme court and that court's affirmance rate in death penalty appeals. For the period 1977–1987, death penalty affirmance rates varied among state supreme courts according to manner of judicial selection as follows:

The dependence of judges upon traditional sources of campaign funds also raises serious questions about their ability to remain impartial when their campaign supporters appear as litigants or lawyers in cases before them. The Code of Judicial Conduct, adopted by the American Bar Association in 1972, does not require a judge to disqualify himself or herself if a campaign contributor is a party to a case.

Often when lawyers have a choice of filing a case in state or federal court, they opt for federal court because they have greater confidence the case will be decided by an impartial tribunal, unaffected by the vagaries of local politics. Even the most conscientious state judges have expressed discomfort with the prospect of campaigning for reelection and with that prospect's subliminal impact upon their decision-making process. As California Supreme Court Justice Otto Kaus put it, "It's hard to ignore a crocodile in your bathtub."

Although many of those appointed to the state and federal benches are politicians before they get there, the goal should be to permit them to cease political activity once they put on their robes. At the federal level, that goal has been largely achieved. At the state level, however, it does not appear that an elected judiciary can be insulated from the corrupting influence of campaign fund-raising. A 1971 report of the American Bar Association concluded, "There is no harm in turning a politician into a judge. He may become a good judge. The curse of the elective system is that it turns every elected judge into a politician."

Gerald F. Uelmen
(1992)

Bibliography

Berkson, Larry et al. 1981 Judicial Selection in the United States: A Compendium of Provisions. Chicago: American Judicature Society.

Du Bois, Phillip L. 1980 From Ballot to Bench: Judicial Elections and the Quest for Accountability. Austin: University of Texas Press.