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Electing Judges

Many states elect their judges, at least some of them. As we saw in Wisconsin, with their Supreme Court election this past year, this has some undesirable effects.

In that case a single issue, virtually decided what justice would be. Without regard to my feelings on that issue, this is obviously a bad idea. Justice is not supposed to flow with public opinion. Legislation, yes. Executive authority, yes. Not justice.

While having the executive appoint, and legislators confirm, judges to their office for life is not perfect, it provides the best system we have. Among the advantages are:

1. Judges appointed for life are not subject to the major fault of political types, where, at the end of their term, they do things that would never have flown if they had to stay in office longer. Pardons of dubious merit and bills and orders of equally dubious value and worth abound. While some of that may be reversed after a subsequent election, judicial decisions are not so easily brought into compliance with  the wishes of the people.

2. Having one appoint and others confirm is a nice check on the significant power put in a judges hands.

3. Once appointed, judges are not beholden to anyone to maintain their office. Not even the electorate. Justice is expected to be blind to such things, everything aside from the evidence in fact.

4. Elections bring promises, promises expected to be kept. Promising to uphold the law even if it’s unpopular and results in the freeing of those who have committed their crimes and still must go free, will seldom win one an election. Elections also bring fundraising.

While there are some checks and balances with an electoral system, for me I prefer independent judges appointed for life. There should be more checks on appointed judges though. I would like to see regular random reconfirmations, perhaps by lottery, by the legislative body responsible for confirming judges. Probably with a lower threshold than their original confirmation. 40% would be a fair threshold.

Judges would retain a significant amount of independence, but would be unlikely to undermine legislative intent very severely. There is no great solution, but I don’t like the idea of judges behaving as our other elected officials do.

An interesting paper can be found here, highlighting some of the pros and cons of various judicial systems.

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