All the way off
By Jonathan Bernstein
One of the things that I've blogged about repeatedly is that Americans are called on to vote more often, for more things, and in many cases with fewer useful cues than are citizens of almost all other democracies (I'm not the only one: See Matt Yglesias, for example, here). So I was happy to see a Sandra Day O'Connor op-ed titled "Take Justice Off the Ballot" in the Sunday NYT. Unfortunately, O'Connor doesn't really want to take state judges off the ballot completely; her preference is for appointments followed by "a yes/no vote in which citizens either approve the judge or vote him out."
A few things to say about this. First, I don't know exactly what judicial elections (either for original selection or retention of previously appointed judges) are supposed to do. Do we want the best possible (in some sense) judges? Judges that reflect the policy preferences of voters? Judges who are in some sense unbiased? I do think that saying that one portion of the system is not "political" is a mistake, and I do think that judges are in some sense representatives of voters, but few think that they are representatives in exactly the same way that (other) elected officials are. So I'm not entirely convinced that voting would be the best way to go even if it worked.
More to the point: It's not remotely realistic to expect that voters make careful decisions about judges. Not really because of the technical expertise needed to do so, but because of the numbers game. Voters don't sit down and carefully consider the case for and against handfuls of state judges, on top of federal, state, and local legislative and executive branch candidates, not to mention in many places both state and local ballot measures. Instead, voters use shortcuts, with the big one being party affiliation. O'Connor's preference is for a yes/no vote on incumbent judges (something already used in some states), but in reality voters have no idea who their states' judges are, much less whether they're doing a good job or not. What this translates into is incumbent judges who are safe unless they annoy a well-funded interest group, a coalition of groups, or a political party. Is that really what we want? Judges who know that their jobs are safe as long as they don't rattle any cages -- at least not any cages that can do full-scale opposition research and produce TV ads?
I think one can see the confusion in this issue in O'Connor's discussion of accountability:
[J]udges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.
Well, yes. O'Connor wants to square that circle, but it simply can't be done. Once officials are directly accountable to voters (whether in partisan elections, nonpartisan elections, or the yes/no approval voting O'Connor favors), that automatically subjects them to "political or ideological" influence. That's what elections are all about! So when O'Connor worries about judges who might be "more accountable to a campaign contributor or an ideological group than to the law," it's not clear why she believes that any kind of judicial elections would be helpful.
Of course, lifetime appointments do have their problems, but the obvious cure to that isn't elections; it's shorter terms.
My real concern here isn't so much with judges, but with voters. There's no convincing hard evidence about the effects of the (extra-) long ballot on voters, but I think it's fair to say that there's no real advantage, at least none that I can think of, in asking people to confront their ignorance about government and public affairs in the polling place by asking them to evaluate dozens of people they've never heard of. I like that Americans vote on quite a lot of things. I do think, however, that we overdo it, and judicial elections (along with statewide ballot measures) are first on my list of things to eliminate from our ballots. I can't promise that it would actually increase turnout, or decrease cynicism, or any of that good stuff, but I can self-report that at least in my own case, I'd feel better about elections if they featured fewer items for which I was basically just guessing. Keeping judges off the ballot would be a great start.
Jonathan Bernstein blogs about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.
Washington Post editor
May 24, 2010; 10:45 AM ET
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