Judicial Selection: A Correct Method

It seems now that democracy has become synonymous with America; however, democracy was not a new idea when our constitution was written. The framers of the constitution did create a whole new system of government based on federalism. The new concept of federalism gave states and the central government independent sources of power as opposed to the existing ideas of a unitary or confederal system. The framers also decided to create a democratic republic in lieu of a direct democracy. By doing so they were able to keep the public involved in the political process but to a degree where the general public would not hinder the actions of the government. They struggled with the ideas of independence and accountability for the elected officials. With so many issues to consider the framers had to set forth many provisions within the constitution that would ensure the government served the people but did not infringe into their everyday lives. However, upon inspection of the constitution it is easily noticed that article three, which maps the judiciary, contains only three brief sections. The three sections set provisions for the Supreme Court along with its justices, the jurisdiction of the Supreme Court, and treason. The power to establish lower courts is left with congress. Jumping from the signing of the constitution to present day we can see that the judiciary has grown vastly from the seeds planted by the framers; more importantly, much of the judicial practices vary state to state because of the minimal restrictions set in the constitution. Although, the framers decided that federal judges should be appointed, rather than elected, many states have decided to give more power to the people. In thirty-seven of the forty-eight continental states, citizen participation in judicial selection is allowed. (Besley 1) This brings up many of the same questions that the framers of the constitution faced. What should we expect from our judges? How will our policy affect the individuals that preside over our courts?

It was the opinion of Alexander Hamilton that the justices of the Supreme Court be independent rather than accountable to the public. He felt that the judiciary was the weakest of the branches of government and that, "nothing can contribute so much to its firmness [the judiciary] and independence as permanency in office." Eventually, the framers decided that the justices be appointed. However, supporters of elected judges also have many compelling arguments in their case. Although I find the supporters opinions interesting they are also idealistic not realistic, like my research suggests. Therefore, I must conclude that I cannot support the idea of elected judges; the framers had the right idea and California should not allow its citizens to vote in the selection of its judges but instead follow the ideas of the framers.

Since the states have been left to their own methods of selecting the judiciary, many variations in the selection process have occurred. Voter involvement was first allowed in partisan elections, where voters were charged with selecting the justices. Soon thereafter non-partisan elections arose. In 1934, the first merit plan was adopted by California. The new format required that a three-person justice commission confirm gubernatorial appointments of judges. (Epstein) The California merit plan is still the current method of judicial selection for the California Supreme Court and court of appeals, however, the superior courts select judges in non-partisan elections. After a judge is selected and approved they will stand for retention in the next gubernatorial election and if retained will serve a twelve year term. (California judicial selection) In the gubernatorial election, when the judges stands for retention, electors give a yes or no vote to the question of whether the judge should continue in office. Now, if we return to Besley's declaration that thirty-seven of the forty-eight states allow voter participation in judicial selection we can see that this statement would 'umbrella' merit plans such as California's and it would also include partisan or non-partisan elections. Although, Besley later calls attention to this fact, these systems are, obviously, very different methods of involving the voters that each has unique side effects.

Statistically, elected judges have less litigation brought to their courtrooms when compared to elected judges. In his article, The effects of Judicial Uncertainty and the Rate of Litigation, Hanssen attributes this to the idea that the elected judges are accountable to the public and therefore have more limitations upon their rulings. "When disputants agree how a judge will decide, they have no reason to litigate," and will be led to settle out of court (Hanssen). The limitations on the rulings are just boundaries that the judge does not wish to cross because he or she is worried about the next election. We should not allow the interpretation of the laws to be suppressed by majority opinion. The judicial branch of government was designed to uphold the law no matter what. If the public opinion is against the interpretation then it is their job to amend the laws or make new ones through the legislature.

In Eric Helland and Alexander Tabarrok 's Exporting Tort Awards a large set of interstate disputes regarding tort awards is examined. The paper concludes that states using partisan elections for judicial selection show a strong bias against out of state defendants. This undermines the principle that our judicial system is supposed to uphold the law and protect the minority. If judges are biased against out-of-state defendants they are appealing to the majority of their voters whom they are accountable to; voters that have a bias in favor of their state of residence. How can judges be expected to represent the law if they must also represent a majority constituency as a congressman does? However, it may be claimed that there are more incentives to export the tort awards. More precisely, that any judge would be more likely to award greater sums if the defendant is out of state because it harms the home state less. Although this argument may contain some truth, Helland and Tabarrok wrote another, more exhaustive, paper Court Politics: The Political Economy of Tort Awards, with data that strongly suggests that because judges incentives are lessened (by not facing elections) so are their awards. Therefore, in any case, a state with an elected judge will reflect a stronger bias in its interpretation of the law. This holds true for non-partisan elections also, even though it is not as strongly supported by the data as partisan elections. Bias is not a result that we should see in our courts; if church and state should remain separate so should bias and the judiciary.

Judges that face an election or re-election will have to finance the campaign and therefore be subject to a campaign fund similar to other elected politicians. The interesting part about a judge's campaign fund is that contributions are primarily received from trial attorneys. This is because of the nature of the proceedings in the court. Trial attorneys consistently face the same set of judges while the rest of the population may never end up in a courtroom or if so they may face a different judge each time. (Court Politics) The nature of these contributions is exactly the same as campaign contributions that are given to congressional candidates by interest groups. Interest groups that contribute to congressional campaigns help the candidate get into office and in return hope that once in office the individual will help serve their interest or 'throw them a few bones.' Trial lawyers, in essence, are playing the part of the interest group; they hope that by contributing to a judge's campaign funds the same judge might remember them when they meet again, which is certain to happen. Congressional policy is widely known to show a bias towards the big pockets of America because of the campaigns and election process. By allowing our judicial selection process to follow the same rules as those of the congressional selection we should expect to see similar byproducts and we have. Throughout America, there have been instances in which judicial campaigns became more competitive than congressional elections. In California, during the1986 retention election, the chief justice along with two associate justices had a campaign engineered against them for their rulings against the death penalty (California Judicial Selection). This was a perfect example of how the election process can taint our judiciary. The favoritism towards monetary incentives is another thing that should be kept out of the courtroom. Our judges should not feel pressure to return the favor. Therefore, I feel that, partisan and nonpartisan elections would fail to bring proper justice to California and the other forty-nine states.

The shift from partisan to non-partisan elections came as a response to the increased sentiment that partisan elections corrupted the judges. Then from the period of 1934 to the present, a majority of the states adopted hybrid plans also known as a merit plans. Merit plans offer a way for states to replicate the national policy of selecting judges while still keeping the voters involved. Typically, there are two major players involved in the merit plans: a judicial commission and either the governor or legislative body. I have already described California's merit plan, however many other merit plans operate differently. Under the standard merit plan the judicial commission selects a list of the most qualified individuals and the legislative body or governor then selects individuals from the list to fill the positions. Despite the differences, all merit plans are appointments that closely follow the process of selecting the U.S. Supreme Court judges. By designing systems in this manner, as opposed to election based systems, more independence is vested into the judiciary. Timothy Besley and Abigail Payne also come to this conclusion in their report published by the IFS (Institute for Fiscal Studies) titled Judicial Accountability and Economic Policy Outcomes: Evidence from Employment Discrimination Charges. As expected from the title, Besley and Payne used employment discrimination charges filed in all fifty states to conduct their research. This allowed them to study the effects of judicial selection procedures on outcomes and, more importantly, determine if it is the initial selection process or incentives that shapes their behavior. The most important conclusion of the paper is that it is the re-election incentives that shape the behaviors of a judge instead of the system of selection.

The findings of Besley and Payne are key to understanding why election based systems will fail to bring justice to American states. In any election there will be the incumbent judge and any judges that are running in opposition. So although there is little significance in obtaining office in an election, as suggested by Besley's work, there will always be the re-election incentive for the incumbent. The sitting judge will know that he is faced with re-election and will have acted accordingly in his decisions, as proved in Exporting Tort Awards.

So far I have mainly addressed the varying methods in which states allow an individual to become a judge without much regard to the terms of the position. Although some of the anti-federalists argued against it, namely Brutus, the term for justices of the Supreme Court was set for life. In the anti-federalists paper number eleven; Brutus declared that the lifetime terms, set forth in the constitution, would render a judge

"totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications."(Kaminski)

However, in election-based systems, shorter terms for judges will prove to increase accountability as it has in congress and states that use election based systems. Also, I have provided many examples that specifically demonstrate problems with election-based systems (and the re-elections). The California merit plan, like other states' plans, introduces accountability by requiring a retention vote every twelve years after the initial retention vote held during the next gubernatorial election. However, according to Malia Reddick, the director of research for the American Judicature Society, retention votes appear to only offer another way for the public to remove an individual from the bench. In her analysis of several studies conducted she concluded that judges are rarely removed and it is only when there is a strong public campaign against them, as in California. This only serves to enforce the idea of good behavior that judges should operate under. Furthermore, she found that merit plans have a much stronger tendency to weed out incompetent nominees for the judiciary; interestingly enough, competence is considered the number one determinant of a retention election.

In conclusion, I feel that partisan and non-partisan elections will only serve to corrupt the judiciary. Scholars have used much empirical data directly from the courts to prove the negative effects of holding our judiciary accountable as we do our legislatures. The same empirical data has also shown that the merit systems coupled with the retention elections in relatively long time intervals (twelve years) allows for judicial independence while still ensuring good behavior. It is for these reasons that I believe that California should not change its system of judicial selection. The current merit plan offers competence of the judiciary and judicial independence so that our judges will understand the laws and be able to uphold them without regard to popular opinion. The merit plan allows states to closely mirror the ideas set forth by the framers of the constitution; the framers that meticulously accounted for every word that was penned into the constitution.

Although I have not posted the sources along with my paper I do have them. So, if anyone is interested, my contact info is on my website.