The trouble with electing judges

OF ALL the ways in which America is exceptional, its practice of electing judges is one of the least obvious and most striking. The spectacle of someone who has the power to hand out death sentences making stump speeches, seeking endorsements and raising funds has long seemed odd to outsiders. Alexis de Tocqueville, whose travels around the country coincided with the spread of judicial elections, predicted that “these innovations will, sooner or later, have disastrous results.” It is a view shared by many of the judges running for office around the country.

Judicial elections are becoming a lot like any other. Tennessee’s recent race was a good example. A few days before the poll Gary Wade, the chief justice on the state’s Supreme Court, sat in his office, a room enlivened by a bearskin rug on the floor, complete with paws and snarling mouth. Mr Wade had faced the voters five times before, but this election was the first time he had to do any actual campaigning. Tennessee’s race became unexpectedly political: the three judges up for retention were hit with adverts denouncing them as Obamacare-loving liberals, though their court has never ruled on the subject. The judges responded by raising over $1m to buy adverts of their own.

Since candidates must sign off on their campaign-finance reports, they know who has given money. One of Mr Wade’s donors was a lawyer who recently lost a case before him. Throughout the election a judge has to carry on doing his day job: in the afternoon Mr Wade will consider an opinion in the back of a car on the way to a campaign event. “I never thought I would be doing this,” he says. Still, the mudslinging in Tennessee was mild compared with this year’s race in North Carolina, where a judge was attacked in adverts funded by business interests that accused her of being soft on paedophiles.

Between 2000 and 2009 spending on state supreme court races increased two and a half times compared with the previous decade, according to data compiled by the Brennan Centre at New York University and two charities, Justice at Stake and the National Institute on Money in State Politics. In 2011-12 spending reached $56m. Three things account for the increase. First, the battles over tort law that erupted in the 1990s, with companies griping that frivolous lawsuits were costing them a mint and trial lawyers insisting that everyone deserves a day in court. (The lawyers bankrolled Democrats to thwart tort reform; companies grew impatient and started funding efforts to replace plaintiff-friendly judges.) Second, the Supreme Court ruling in the case of Minnesota v White that judges have free-speech rights and may pronounce on politics. Third, the increase in spending by campaign groups that followed another Supreme Court ruling, Citizens United.

All this means that judges are raising much more money. Wallace Jefferson, the former chief justice of the Texas Supreme Court, describes a visit to the boardroom of a Texan law firm during his most recent election campaign. He asked the assembled lawyers for their support and they responded with assurances that they would donate. But, they said, his opponent was a judge on the local circuit whom they appeared in front of frequently, so they would have to support him too.

Most voters do not know their judges, so party affiliation and having a good name count for much more on the ballot paper than the quality of the candidate’s decisions. What is a good name? “Wallace Jefferson is a good name.” Since people often vote for the same party the whole way down the ballot, in races where judges must be party members they can find themselves slung out for reasons that bear no relation to judging. In 2008 Texas lost some well-qualified Republican judges, some of whom were replaced by Democrats with no experience, a pattern that was reversed in 2012. Texan judges are still pretty good, but “that’s more to do with luck than anything,” says Mr Jefferson.

Electing judges is a bad idea because judges are not like politicians. It is fine for a politician to make deals with voters; to say, “Vote for me and I’ll raise the minimum wage” or “Vote for me and I’ll cut taxes.” But it is an abuse of power for a judge to promise—or even hint—that he will decide future cases on any basis other than the facts and the law. Standing for election gives judges an incentive to smile on people voters like and get tough on those they hate. That is hardly a recipe for impartiality.

Vote for me and I’ll jail the people you hate

A study of rulings in 276,000 cases in Washington state by Carlos Berdejo of Loyola Law School and Noam Yuchtman of the University of California, Berkeley found that judges gave criminals sentences that were 10% longer when they were about to face re-election. Another study by the left-leaning Centre for American Progress found that races that cost over $3m led to more rulings favouring the prosecution. At a time when many states are concluding that harsh justice is expensive and counter-productive, elected judges may prove an obstacle to reform.

Another worry, says Rebecca Love Courlis, a former chief justice of Colorado, is that as the election of judges comes to resemble the contests for any other political office, voters will start to hold judges in the same esteem as other elected politicians. In 1998 a poll for Texas’s Supreme Court found that 83% of Texans thought that campaign contributions influenced judicial decisions. More worryingly, 48% of the judges agreed. Those numbers are unlikely to have improved since.

Mr Wade won in Tennessee, helped in part by a new-found flair for campaigning: his website featured a picture of the judge with his arm around Dolly Parton, a high-school friend and local megastar. Still, de Tocqueville’s view that judicial elections were an attack “against the democratic republic itself” is worth listening to. When first introduced, elections were seen as a way to insulate judicial nominations from the perception of corruption. Now they are having the opposite effect.