Judicial elections are an imperfect, best option

As someone who teaches and loves the law, judicial elections make me cringe. I know that complicated issues will be misrepresented and that campaign ads will be saturated with nonsense. There are times when I wonder whether we would be better off appointing, rather than electing, judges.

But then I think of Sen. Ted Kennedy (D-Mass.) at Senate confirmation hearings. Whenever someone is nominated for the U.S. Supreme Court (or, increasingly, for lower federal courts), misrepresentation and nonsense are on the hoof. Elections aren't perfect, but the proposed "solutions" are no better.

Our recent election for the state Supreme Court was nasty. Two men who, the last time I saw them, seemed to be reasonable lawyers with deep philosophical differences, were portrayed as corrupt bobble heads and sepia-toned champions of sexual predators. In this, I am afraid, judicial elections don't differ much from every other election in the overwrought, angry politics of our day.

There is a serious academic debate about the compatibility of electoral politics and the judicial function. In brief, the argument is that judges are charged to apply the law without regard to whether the outcome is popular. Indeed, some legal principles - for example, the constitutional rights of criminal defendants and of freedom of speech - are intentionally countermajoritarian. They cannot be denied because those who claim them are unpopular.

To what extent are judges influenced by fear of the electoral consequences of an unpopular decision? In a study focusing on the Wisconsin Supreme Court, my Marquette University colleague, Jason Czarnezki, found that, for the most part, justices are not more likely to rule against criminal defendants as they near re-election or after a closely contested race. But the data did suggest that justices who are initially appointed to vacancies are less likely to vote in favor of criminal defendants after facing the voters and that justices who are generally more favorably disposed to the claims of defendants are less likely to rule in favor of criminal defendants as they near re-election. The results of studies in other states have been mixed.

The possibility is troubling. Unlike legislators, judges aren't supposed to consider popular opinion when rendering their decisions. Although the impact of an approaching election may be limited, any departure from impartiality is cause for concern.

Some scholars argue that appointed judges are more likely to adopt expansive notions of the role of the judiciary. Judges who need not answer to the voters may be more likely to adopt approaches to the law that expand the discretion and authority of the judges to pursue their own policy goals.

The poster case for this approach is, of course, the U.S. Supreme Court's decision in Roe vs. Wade. Perhaps almost all abortions ought to be legal. But more than one legal academic has driven herself to the brink of insanity trying to find a constitutional mandate for that view that doesn't leave judges free to create whatever rights they want.

Appointment may serve impartiality, but at the expense of accountability. This lack of accountability - if it contributes to an "imperial" judiciary - is just as problematic as electoral threats to impartiality, threatening to impinge upon the prerogatives of the executive and legislative branches.

And it attracts political attention. When judges believe that they can read the law in light of their political predilections, it is only natural to expect that people will come to care passionately about the ideologies of judges.

This is, in large part, responsible for the way in which battles over the confirmation of judges have turned into little Armageddons. Appointment doesn't drive out politics; it just moves it from the campaign trail to the hearing room and, of course, the back room.

Although appointment for life may eliminate political concerns once a judge assumes the bench (at least if the judge doesn't aspire to higher office), that impartiality comes at the price of a lack of accountability. Nor is greater impartiality ensured. More than one commentator has remarked upon the tendency of appointed judges to migrate toward approaches favored by what Justice Antonin Scalia called the "law profession culture."

If appointment turns out to present its own problems, a common fallback position of those disturbed by the tone of judicial elections is to embrace severe restrictions on campaign finance (generally a combination of public financing with severe limitations on third party spending) or a construction of the Judicial Code that severely restricts what candidates for judicial office may say.

There are constitutional problems with these approaches. The U.S. Supreme Court has held that the First Amendment protects both robust debate in judicial elections and the right of groups concerned about issues to be heard at the time of an election.

In any event, these approaches amount to a desire that judicial candidates shut up about philosophical differences for fear that they will not discuss them responsibly or that the public will not be able to understand them. The result, as with most campaign finance "reform," is incumbent protection.

I, too, am tired of being told that I should call Michael Gableman or Louis Butler and tell them that their mothers regret the day that they were born. But I hope (and actually suspect) that, through all the drama, voters did get some sense of the legitimate difference between the candidates.

The proposed cures are worse than the disease.

Rick Esenberg is an assistant law professor at Marquette University and author of the blog www.sharkandshepherd.blogspot.com