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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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What are some pros and cons of appointed judges?

The question boils down to whether or not politics and law should mix, and if so, to what extent. Of course, the two can't be separated completely, but it's nonetheless possible to establish a relatively clear dividing line between them. That being the case, it could be argued that judges should not be subjected to the democratic process. Think of the characteristics we often associate with the ideal judge—fair, impartial, judicious, balanced—and then further consider how they could possibly be reconciled to a process which of its very nature is contentious and partisan.

Judges are there to interpret and apply the law, not carry out specific policies endorsed by the electorate. Their primary duty, therefore, is to the law, not—directly, at any rate—to the people. And the law must be interpreted and applied on strictly legal criteria, not on the basis of what the voters want. Sometimes it will be necessary for judges to go against the prevailing tide of public opinion in relation to such hot button issues as race, abortion, and women's rights. Yet if judges are elected, rather than appointed, then this will make it much harder for them to do what is right, what the case before them demands.

Proponents of elected judges see the process as a way of bringing the law closer to the people. Virtually all aspects pf public life have been thoroughly democratized, so why not the law? It's the people's elected representatives who make most of the law, so it seems perfectly logical that the voters should have a say in who applies and interprets that law. The rule of law is an important foundation of a civilized society, but it should not give judges the right to be out of touch with wider society and its concerns.

In cases involving rape, for example, appointed judges have often shown themselves insensitive to the needs of victims, holding onto outdated opinions of gender relations which have little if anything to do with the law, but everything to do with personal prejudice. Electing judges gives the community an opportunity to ensure that those who serve on the bench share the people's priorities. Although the profession of law requires appropriate study and training, an understanding of what is right and just does not, and it is this crucial extra-legal dimension that a democratization of the process of choosing judges can bring.

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What are some pros and cons of appointed judges?

In essence, there is just one pro and one con to having appointed judges.  The pro is that appointed judges are free of the political process.  The con is the same, worded differently.  Appointed judges are bad because they are not democratically elected and therefore are not subject to the will of the people.

If you need more points each way, you can split each of these up to some degree, creating “subpoints” that are part of the larger idea.  In favor of appointed judges:

  • Appointed judges are chosen on merit.  Judges or good or bad based on how well they know the law and how to apply the law to court cases.  They should be picked by legal experts, not by the voters who have no real basis on which to choose between them.
  • They do not have to ask people for money.  If judges have to raise election funds, it will seem that they are biased in favor of those who give them money.
  • They do not have to think about public opinion when deciding cases.  We don’t want judges thinking “what will be the popular decision” when trying to make decisions based on the law.

Against appointed judges:

  • Appointed judges are undemocratic.  We don’t allow experts to pick presidents and members of Congress so why should we allow them to pick judges.
  • They don’t have to listen to the will of the people.  Officials in a democratic system should have to follow the will of the people, expressed through elections.
  • The appointment process can be corrupt too.  What if the “experts” who select the judges are giving money to the judges.

Please follow the links below for editorials arguing for and against appointed judges.

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What are the pros and cons of the merit appointment system of selecting judges?

Most constitutional governments, including the United States' government, use three branches of government—the legislative, executive, and judicial—and rely on a system of checks and balances to ensure that none of these branches gain too much power over the others. Because the branches that are the most likely to gain an exorbitant amount of power and then to use that power for political purposes are the executive branch and the legislative branch, democracies need to have a judicial branch that is free from political pressures.

The existence of this political pressure drives the list of the pros and cons of having a merit-based appointment system for the judges on the judiciary.

The biggest pro of having a merit-based system of appointment is simple: you get the best and most qualified judges sitting on the bench. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Their knowledge of the law and how it can be applied to particular circumstances would allow them to resolve disputes in ways that are objectively correct.

Another important pro of having a merit-based system of judicial appointments is that it takes the process out of the hands of voters, avoiding one of the most popular alternatives to judicial appointments. Voters are predominantly laypeople who live without an extensive knowledge of the law and what it means to be a good judge. They are unlikely to recognize the differences in the makeup of an effective judge and an ineffective one and are nearly as likely to vote for bad judges as they are to vote for good ones. Additionally, allowing voters to choose judges, in a way, makes judicial appointment political: voters will vote for judges they agree with, and if popular opinion swings in a way that becomes unconstitutional (an outrageous example would be if, suddenly, the majority of people thought slavery was acceptable again), it may result in numerous judges who thought in the same vein. A merit-based appointment system prevents voters from making this mistake.

However, any judicial appointment system is rife with cons as well.

The chief con with appointing judges is that, paradoxically, it may be just as political as letting regular voters select their judges. Instead of getting judges who cater to popular opinion through the voting process, the appointment process results in judges who cater to the opinion of only a small set of people: whoever is on the appointment panel. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment.

This first con hints at the real problem with a "merit-based" appointment system for judges: what is "merit"? There are numerous ways of thinking about justice—so many that there is an entire field of thought for it, called jurisprudence. Even the best judges disagree with one another: look at the Supreme Court of the United States, which is filled with constitutional scholars from Ivy League law schools who have decades of experience as lawyers and judges, splitting 4-4-1 in the pivotal Obamacare case, National Federation of Independent Business v. Sibelius. In the end, judicial "merit" can be political as well. Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rights—only those that are in the plain language of the Constitution. Liberals, on the other hand, favor judges like Justice Ginsburg or Sotomayor, who are willing to expand the language of the Constitution to "create" civil rights that are not mentioned in the Constitution but which are clearly "meant" to be there. For example, consider the right to privacy, which is never mentioned in the Constitution but was "created" from the values of several other amendments.

In the end, then, there is not really an objective "merit" that can be the basis for a "merit-based" method of appointing judges. This potentially means that any "merit-based" system could be used to cover up politically driven judicial appointments from scrutiny.

Finally, another con of a merit-based system of appointing judges is that deciding, once and for all, what it means to be a "good" judge is inherently impirical. Once a merit-based system is in place, all subsequent judges will have only the traits that allow them to sit on the bench. With only a small set of values allowed, only those values will be used to make judicial decisions, which stagnates innovation in the law and prevents society from progressing.

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What are the pros and cons of the merit appointment system of selecting judges?

I agree.  Judges should not be politically elected, because it would be disastrous to have judges act as politicians do.  It is bad enough that politically-inspired laws can be passed by legislators who are beholden to the interest groups that got them elected, we do not also need judges who have to interpret the law in a certain way in order to remain elected.  In my opinion, district attorneys and judges should not be popularly elected on regular, short terms.

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What are the pros and cons of the merit appointment system of selecting judges?

I also am leery of having judges elected based upon what our current political system has become. I would fear that a judge that is elected would owe a debt to his political supporters.

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What are the pros and cons of the merit appointment system of selecting judges?

Unfortunately, we (voters) often choose our elected officials based on superficial elements such as appearance, name, simple recognition rather than merit. If that's a bad thing when it comes to our government representatives, it's a horrible thing for our judges.

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What are the pros and cons of the merit appointment system of selecting judges?

As the purpose of a judicial system is impartial interpretation of the law, merit is everything.  I would much rather have a constitutional scholar, a judge with vast experience in the law itself, than someone with a pretty face and a good election slogan who knows how to be popular.

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What are the pros and cons of the merit appointment system of selecting judges?

The above two posts make it completely clear that it would be very dangerous to elect judges as politicians are elected. To carry out their duties as a judge it is vital that they are impartial, and the party political system and method of voting would guarantee that they would lack that necessary impartiality that is needed.

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What are the pros and cons of the merit appointment system of selecting judges?

In concurrence, judges should not be part of the political system, for then they are beholden to someone and may not be impartial as they should.

The fault of any alliance to a political thinking is evidenced in the Supreme Court appointments as presidents appoint judges with whom they will have an alliance of ideology.  History has recorded cases in which certain judges of the Supreme Court have, in their single presence or in their single absence, made the difference in a ruling.

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What are the pros and cons of the merit appointment system of selecting judges?

As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns.

The pros are numerous, but what they boil down to is that you want your judges to make their decisions based on the law, not based on what public opinion says or what people who can contribute lots of money to campaigns think.  If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons.

The only con I can see is that this takes some power away from the voters.  However, I do not think that the voters are the ones who should decide how to interpret the laws.

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What are the pros and cons of elected judges?

The majority of U.S. states incorporate some form of judicial election via partisan contested elections, non-partisan contested elections, or retention elections. Each of these types of election of judges presents advantages and disadvantages over a pure judicial appointment system. 

The primary advantage of having some form of election in the selection and/or the retention of judges is that such systems provide a community with a voice regarding the judges who sit in that community. In some systems, this includes community selection of judges via contested election, and in others it only involves community retention of appointed judges. In either type of system, contested election or retention election, if a judge is a problem, the community has a mechanism for removing that judge. Conversely, in an appointment system, removal of a judge often requires specific kinds of wrongdoing on the judge's part and action by one or both of the other branches of government in the state.

Another advantage sometimes discussed with respect to having some form of election of judges is that such systems promote a more dynamic, responsive judiciary. In many appointment systems, judges either have life tenure or their reappointment is determined by the other branches of government. Such systems may result in a long serving, and perhaps stagnant, judiciary. Having some form of election, however, is seen as a way to promote change in the judiciary through the election of new judges or the non-retention of siting judges, as well as possibly ensuring a more responsive judiciary as elected judges or judges subject to retention election are believed to be more aware of the community ramifications of their decisions.

Many opponents of the election of judges, however, believe that the negatives of such systems far outweigh the positives. The common criticism across all mechanisms for electing/retaining judges is that such systems create a judiciary that is beholden to the whim of the public and to political interests rather than to the law. Judges should be able to make difficult decisions regarding the application of the law without fear of political reprisal if the decision is unpopular. If the judge is subject to re-election or retention, then there may be pressure on the judge to make his or her decisions based not on the law, but what he or she believes will win the next election. Critics of judicial elections argue that such situations impinge on the duty of the courts to be fair and impartial.

The above negative is most often cited with respect to systems in which judges stand for contested election, either partisan or non-partisan. A contested election requires a sitting judge to devote some of her or his time to campaigning and raising money. Both of these activities are seemingly at odds with the impartiality of the courts. To combat this, states that hold contested judicial elections include strict campaigning rules in their codes of judicial conduct. However, even adherence to these rules does not remove the political pressures of raising money and campaigning.

This problem is exacerbated in jurisdictions that hold partisan rather than non-partisan judicial elections. Given the nature of partisan politics, it is more difficult for judges to remain insulated from the policies of their parties if they must run as members of a party. Further, local partisan elections can often hinge on larger national trends, and critics of the partisan election of judges point out that good judges who are not members of the party popular in the moment may not win re-election while candidates who are members of the popular party may win seats to which they are less qualified. In other words, partisan election of judges leads to the election or re-election of judges not based on the qualifications of the judge or candidate, but based on party affiliation.

States that employ a retention election system are attempting to mitigate the liabilities of both the election system and the appointment system by keeping what are perceived to be the strengths of both systems while eliminating some of the problems. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. The judge then stands for at least one retention election, which gives the community a chance to remove problem judges while simultaneously insulating sitting judges from the politics of having to run a re-election campaign. In recent years, however, some of the benefit of retention election systems has been lessened by coordinated, and often well-funded, campaigns against retaining judges who have made politically unpopular decisions, regardless of whether those decisions were merited under the law.

There is no perfect system for the selection and retention of judges. Having some form of election involved ensures that the community has a role in the selection and retention of judges, and thus it appeals to the majoritarian philosophy inherent in U.S. politics. However, the election of judges and, to a lesser extent, the popular retention of judges subjects those judges to political pressures that are often not compatible with the desired impartiality of the judicial branch.

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