01 March 2010

When Did We Start Electing Judges?

Almost ninety percent of state judges today face some kind of popular election. This peculiar institution emerged in a sudden burst from 1846 to 1853, when twenty states adopted judicial elections.

The modern perception is that judicial elections, then and now, weaken judges and the rule of law. Indeed, some critics of judicial power in the early republic supported judicial elections for precisely those reasons, but instead, they focused on other more direct attacks on the courts.

Judicial elections swept the country in the late 1840s and 1850s and the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become more a tool of party patronage and cronyism. Legislative overspending on internal improvements and an economic depression in the early 1840s together had plunged the states into crippling debt. A wave of nineteen states called constitutional conventions from 1844 to 1853, and in addition to direct limits on legislative power, these conventions adopted judicial elections. Many delegates stated that their purpose was to strengthen the separation of powers and to empower courts to use judicial review.

The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade. These elected judges played a role in the shift from active state involvement in economic growth to laissez-faire constitutionalism. Oddly, the first generation of elected judges were the first to justify judicial review in countermajoritarian terms, in the defense of individual and minority rights against abusive majorities and the “evils” of democracy.

From here.

Other interesting points:

* The election of judges swept the nation after three serious recessions in five years in the United States that were poorly handled politically and led to widespread loss of credibility for the executive branch and legislative branch officials then in office. It was something of a conspiracy of the political extremes (the Radical Democrats and Whigs) against the middle.

* The 90% of judges face election in the United States figure is somewhat deceptive as it includes unopposed retention elections like those in Colorado, which produce removals in practice only slightly more often than legislative impeachment, as opposed to true contested elections. Trial court judges are more likely to be elected than appellate court judges.

* Election of justices of the peace, and many state and county executive branch officials (e.g. county clerks) happened mostly in the 1810s and 1820s, not as I have often assumed, in the Progressive era.

* The percentage of the population who voted more than doubled from 1824 to 1828, mostly due to an expanding franchise.

* Georgia started to elect inferior court judges in 1812, Indiana started to elect some trial court judges in 1816 and for higher courts in 1835, and Mississippi was the first to have an elected state supreme court (in 1832). Michigan started to elect some trial court judges in 1836 and Iowa did so in 1844. The nature of the appointment process and judicial term lengths varied considerably from state to state. Once electing judges gained popularity, the practice did not have a strongly regional character (despite the fact that regional tensions were very high at this point in U.S. history).

* The only other significant examples of elected judges outside the state and local courts of the United States are:

(1) Switzerland, which elects lay judges on some of its canton courts (lay judges are a hybrid between jurors and judges not trained as judges). Notably Switzerland adopted its constitution in 1848, contemporaneously with the adoption of judicial elections in the United States, and has only one federal court with limited jurisdiction. Switzerland's 20 full cantons and 6 half cantons have considerably more autonomy than U.S. states despite the fact that the country as a whole has just 7.6 million people, and Switzerland is known for its remarkably high level of direct democracy. Swiss cantons are the size of U.S. counties in area and population, despite having more autonomy than U.S. states. See, e.g., here.

(2) Japan, which has a Colorado style retention election system for its high court (roughly equivalent to a U.S. general jurisdiction trial court), and

(3) France, which has elected judges in its commercial and labor courts. In France, the elective judges "lack formal judicial (and usually legal) training of any kind and are elected mid-career to serve temporary terms of office. Those thus elected to office belong to the particular professional (and social) groups whose disputes they will resolve and which, in turn, are responsible for electing them. As a result, such judges are expected to have the substantive expertise (and social and political legitimacy) necessary effectively to resolve disputes among group members." French elected judges appear comparable to professional regulation board and labor arbitration panel members in the United States (e.g. bar association leaders in integrated state bars) and are elected by what amount to guilds, rather than by the general public.

Thus, elected judges are just about as rare as civil jury trials outside the United States.

1 comment:

Dave Barnes said...

Or, UNelecting them.