Tuesday, September 28, 2010

Novel Argument Against Elected Judges

I'm just beginning to pay attention to the fascinating debate over how judges should be placed in office. Minnesota currently has a mess of a mixed system, in which 90% of judges are appointed, and tend to resign rather than face a reelection campaign. Most of the discussion surrounding appointment/election has to do with distrust of elites, rule of law, the myth that courts protect minority rights, legitimacy, and of course, the evils of elections. I think I may have found the first pro-democracy argument against electing judges:

Even when an unpopular justice is removed by a majority, there are serious difficulties for the rule of law and the fulfillment of popular policy goals. Because we live in a democratic, Constitutional republic, when the rule of law is stifled, it means the will of the majority is prevented from taking effect. If the effort to remove a justice is successful, can it be said that the public has overturned the decision? It is an unclear point. A self-interested justice may in the future refrain from relying on precedent which appeared central to a successful removal campaign, but the legal community may well regard it as a standing precedent. The situation becomes doubly confusing if the legislature does not engage the judiciary on a substantive point, which they are unlikely to do if they believe the voters have already repudiated a decision. Treating judges like legislators creates problems for democracy, even if they are already making policy.

In essence, if voters have the opportunity to change the substantive outcomes of a case via the legislature, allowing them to do so via election provides a second bite at the apple. When representatives of the people allow a decision to stand untouched, but the voters punish the authors of a decision, an untenable situation develops in which accountability reaches a new low. Judges point to legislators who write bad laws, and legislators point to judges who use bad legal reasoning. This is certainly the case without judicial elections, but in the case where the voters have to choose whom to punish, things become muddled. Consider the hypothetical where a supermajority on the order of 80% disagree with the substantive outcome of a case. Half of this group blames the judge for the opinion and vote against him, resulting in a 60% majority in favor of reelection. The other half of this group prefers to blame the legislature which wrote the statute which the judge followed to an unpopular conclusion. This 40% of the electorate votes for new legislators, most of whom fail to win seats. Because the voters have multiple actors to blame for the substantive outcome who perform different duties at different points in the enactment of policy, their popular power to decide policy is squandered. Any diversion of responsibility undermines the basics of popular sovereignty.

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