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What are the pros and cons of electing judges?

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There are certainly pros and cons electing judges by popular ballot. In fact, thirty-nine of the fifty US states hold elections for judges. Let's look at some of the common arguments on both sides of this issue.

Pros

Electing judges makes them accountable to the public. If the people feel that a judge is doing a poor job or is abusing their power, the people have an opportunity to vote in someone else.

Appointed judges may feel beholden to the executive and legislature that put them on the bench. Elected judges, on the other hand, can be more independent from the other branches of government.

Cons

Many judges run unopposed. This eliminates the aspect of public accountability that elections were designed to provide.

Elected judges often feel pressure to make their decisions in accordance with popular opinion. Often, the right or legally fair decision is neither popular nor easy. It has become common for judges to make overly harsh rulings in order to appear tough on crime. Studies have shown that judges tend to be particularly harder on crime during election years.

It is expensive for judges to run for election. To raise money, many judicial candidates will seek donations from lawyers, businesses, special interest groups, and even potential defendants. This presents a clear conflict of interest should any of these parties appear before that judge in a trial.

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Pros:

  • Electing judges results in a judiciary that is more responsive to public concerns, less out of touch with what the people want. It's all too easy for an unelected judiciary to lose sight of what's in the best interests of the community as a whole and serve its own narrow interests.
  • Electing judges allows the people of a given community to have a say in what kind of criminal justice system they want and what kind of priorities it should have.

Cons:

  • Electing judges undermines the rule of law. Legal cases should be decided on legal principles, not according to what's popular with the voters.
  • Judges are there to interpret and apply the law; that's their job. Unlike elected politicians, they are not there to serve the interests of the people directly. They do so indirectly through a fair and consistent application of the law.
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As judges play a significant part in interpreting laws, it seems as if it would make sense to elect them. Even more importantly, judges have a fair amount of latitude in sentencing and making other decisions that affect the lives of people brought before them. The decisions judges make  can also affect the daily lives of a community. All of this suggests that electing judges might be part of the democratic principle that citizens should have ultimate control over how their society is run.

On the other hand, the judiciary is part of a system of checks and balances, designed to put technocrats in place to serve as a brake to populism. One duty of judges is to administer the law impartially and thus protect the rights of minorities. Another issue is that judges are expected to be experts and thus most people are not qualified to evaluate their expertise. Thus, it makes sense to have panels of experts, such as lawyers and judges, select new judges.

Having elected officials who are not experts appoint judges seems the worst of both worlds. 

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The biggest problem I see with the election of judges is that most people have no idea who the judge is or what his record on the bench might be. They go to the polls and see a name or two to vote for for judge and just check which ever one might appeal to them at the time.

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A person is either appointed to a judgeship or is elected by the people.  There are arguments for and against each method. Many people agree that justice must be impartial and the selection of judges should not be based on politics, but on a person’s ability as a jurist.  This would argue for a person being appointed.  Some argue that the voting public isn’t equipped to determine the most qualified candidate. Also, candidates to elected judgeships can be heavily influenced by special interest groups.

On the other hand, the judicial decisions, especially appellate decisions, become law and can have a great impact on the public.  This argues that the public should have the final say in selecting the judges that make these decisions. Some argue that the political beliefs of the person or persons making the selection will be reflected in the decisions that the appointed judge makes, so judges should be elected by the people.

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Many states have judges (up to the State Supreme Court) who are elected by the voters.  There are pros and cons associated with this way of selecting judges.

The main pro is that the judges are then answerable to the people.  This is, you can argue, more democratic than having judges be appointed.  If a judge makes too many decisions that are out of line with what the people believe, he or she can be removed.

However, this has its cons too.  Judges are supposed to rule based on the law, not on what is popular.  If judges have to worry about being reelected, they are likely to take positions that they think are popular rather than sticking with what the law actually says.

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