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“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”     C. S. Lewis

October 28, 2007

The Case Against An Elected Judiciary

by Doug Mataconis

Today’s Washington Post writes about the extent to which partisan politics has inserted itself into that peculiarly American institution, the judicial election:

Judicial elections are an almost uniquely American invention, with a patchwork of more than 16 selection systems spread across the country. In the 21 states that hold direct partisan and nonpartisan elections for the high court, some already have evolved from quiet, down-ballot contests to full-blown campaigns with consultants and multimillion-dollar advertising campaigns. An Illinois Supreme Court contest in 2004 cost more than 18 of the 34 U.S. Senate contests that year, and candidates for chief justice of the Alabama Supreme Court last year raised a total of $8.2 million.

The spending increases in large part reflect a decision by business groups to get involved in the contests. The National Association of Manufacturers announced in 2005 that it was establishing the American Justice Partnership to promote tort reform in the states, and the resulting battles between trial lawyers and business groups such as the Chamber of Commerce have led to some of the most expensive campaign battles.

But it’s not just the money that has been injected into these races that is alarming, it’s the extent to which blatantly partisan politics have injected themselves into elections for positions that are, by tradition, supposed to be above politics:

The “new politics” of judicial elections, Brandenburg said, “demands that judges be Huey Long on the campaign trail and Solomon in the courtroom and not miss a beat in between.”

Some judicial candidates have been even more outspoken than in the past since a 2002 U.S. Supreme Court decision that said some state restrictions on the speech of judicial candidates were unconstitutional.

Former Alabama chief justice Drayton Nabors, unseated in the 2006 election, said in one of his television commercials: “I’m pro-life. Abortion on demand is a tragedy. And the liberal judicial decisions that support it are wrong.”

Pennsylvania Supreme Court Justice Max Baer declared in his 2003 campaign, “I am pro-choice and proud of it.”

Here’s the problem. The judiciary, whether it’s on the federal, state, or local level is not supposed to be a partisan branch of government. Ideally, politics aren’t supposed to play any role at all in the administration of justice.

Realistically, of course, we all know that it’s impossible to completely remove politics from the judicial process, but forcing judges, especially judges at the appellate Court level, to run in partisan elections where they are forced to take public stands on issues that are likely to come before them in Court. It comes close to violating the Code of Ethics that judges are bound by, and it gives the public the impression that the entire judicial process is something that can, and should, be influenced the same way a debate in the state legislature is. It demeans the judges who have to run for election, and it demeans the entire legal process.

An appointed judiciary has its flaws, but they are nowhere near as bad as a judiciary that is infused with the poison of democracy.


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2 Comments

  1. [...] Liberty Papers writes on a Washington Post article reporting on the problems of the American institution of electing [...]

    Pingback by Your Name Is My Business » On the Pink Pig Bus and Judicial Elections — October 28, 2007 @ 11:21 am
  2. Yeah — heaven forbid anyone as unimportant as We the People” should be involved in selecting the staff of 1/3 of the government!

    And by the way, I’ve seen your argument made in the past — by those who view monarchy and hereditary aristocracy as the best way of organizing the executive and legislative branches.

    Comment by Rhymes With Right — October 28, 2007 @ 12:00 pm

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