With all of its flaws on parade in the recent Sotomayor hearings, the appointment process is still far superior to the election of judges. Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution! Is it any less unseemly if the check was delivered a week or a month before? The Supreme Court recently in the Massey Coal case required a state court justice, despite his repeated refusals, to recuse himself because one of the litigants had contributed $3 million to his campaign. The Court, in essence, held that this amount was too much, but failed to indicate what beneath that was acceptable and what was not.
What should be unacceptable is the election of judges. 39 of the states elect judges. Contributions to judicial campaigns now total in the hundreds of millions of dollars. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe. But for many there is an expectation of a quid pro quo. How else does one explain contributions to both of two rival candidates?
Admittedly the appointment system has its drawbacks and political influence. But I think it is a fair assumption that the appointing authority will seek qualified persons who will reflect favorably upon them. Screening systems and other programs have been adopted which help assure the proper qualifications. I do not mean to suggest that elected judges are necessarily unqualified, but rather that selection by election is the wrong method for picking judges. The voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge.
There is a suggestion that elections make judges accountable to the people, but there should be no such accountability. Judges running for re-election are frequently judged on the popularity of their decisions. The most unpopular judge can be the very best. Judges who uphold the rights of persons accused (or convicted) of crimes are frequently maligned, but they are accountable to the Constitution and the rule of law, not some popularity contest. Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.