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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.

By Washington Post editor  |  May 24, 2010; 10:45 AM ET
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There are pitfalls with all means of selecting judges, but the worst method of all is to have them elected by the voters.

Having prospective judges "campaign" for the position is unseemly. Most voters will either abstain from voting for the positions, or will go by some arbitrary, information-free personal bias, like reacting to the sound of the names.

Posted by: Patrick_M | May 24, 2010 11:11 AM | Report abuse

That's nice, but then you have to face the problem that all these votes were originally intended to fix -- corruption, and especially judicial corruption. Putting such decisions to the people was the Progressive Movement's way of bringing some sunshine into the cesspool that local politics had become in the 19th century under the spoils system. Now you might argue that we don't have that problem any more, but we don't have that problem any more in part because we took power out of the hands of political machines. Now you want to put it back. That would be fine if there were strong and independent local news organizations to keep an eye on them, but there aren't. With the exception of the NYTimes, they're all dead or dying. So now you want judges to be appointed by local politicians financed by local moneyed interests. In the process, you kill all vestiges of accountability.

I'm not saying it isn't the right solution. God knows I have no idea who those people on the ballot are. But I am saying that you haven't sufficiently considered the historical developments that led us here in the first place.

Posted by: pj_camp | May 24, 2010 1:49 PM | Report abuse

I was surprised the first time I voted in Indiana and read the ballot question on whether or not a certain judge should be retained, especially since I had never even heard of him and the judge had not campaigned.
Given the impressive number of cast ballots for judges in this area, I wonder how the voters decide. I usually have no prior knowledge of their work and do not feel I am in any way qualified to judge their record if I did know (unless, of course, their decision is completely outrageous and is covered by the news).

Posted by: Hoosier3 | May 24, 2010 2:34 PM | Report abuse

"I'm not saying it isn't the right solution. God knows I have no idea who those people on the ballot are. But I am saying that you haven't sufficiently considered the historical developments that led us here in the first place."


One can set up rules for the appointing executive or legislative body. One can require a search committee comprised of citizens and respected members of the plaintiffs and defense bar, and prosecutors and defense lawyers, and also seek an evaluation from the state or local bar association, and input from knowledgeable citizens.

The ballot box is Russian Roulette. In many states, voters put old hack politicians on their highest courts on the basis on name familiarity alone, resulting in major state supreme court decisions that are overly influenced by the partisan consequences.

Across America, we vote for far too many offices and ballot inititiatives to which we bring zero expertise. County coroners, port commissioners, county sheriffs, the list is endless.

We should elect fewer office-holders, and hold them accountable for the quality of the government that THEY put together on our behalf, and not try to micro-manage every judgeship and petty bureaucrat's job ourselves.

Posted by: Patrick_M | May 24, 2010 2:56 PM | Report abuse

"Of course, lifetime appointments do have their problems, but the obvious cure to that isn't elections; it's shorter terms."
Of course, this has its own problems--then judges are accountable to whoever it is that's in charge of appointments. If they want to serve more than one term, they still have a constituency to please.

I'm personally a big fan of retention elections. Patrick_M points out the big problem in electing judges outright, and pj_camp points out the big problem in removing the people from evaluating judges entirely. Lifetime appointments work fairly well on the national level, I think, because of the media scrutiny on the national level. But on the state and local level, that scrutiny just isn't there, and so a more direct evaluation by the people is needed. A political science professor of mine once said that as a general rule, "No news is good news," and you should vote to retain a judge you don't know anything about. (This addresses Hoosier3's concern.)

A retention election can work as a final check on any "smoke-filled room" activity in the appointment process (since the process isn't as scrutinized outside the national level), and it mitigates, if not eliminates, the ill effects of judicial campaigns and elections. Not a perfect system, but a worthy compromise.

Posted by: aarhead | May 24, 2010 10:40 PM | Report abuse

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