Judges should not be chosen by popular vote, nor by politicians. Both approaches are undemocratic and deeply flawed, perhaps even absurd, despite the fact that the former is in widespread use at the state level, and the latter has always been used at the federal level (in the form of appointment by the President and confirmation by the Senate). A far better option is for judges to be chosen by juries drawn from the public by random selection.
In Classical Athens, often called the birthplace of democracy, a wide range of decisions were made by juries drawn from the citizens by lottery. The jury method of democracy continues today in the form of the trial jury. Before looking at how juries could choose judges, a very brief review of what is wrong with judicial elections may be helpful.
Rule by the people needs to be exercised in an informed manner, because only informed views provide a good basis for a decision. However, popular election is extremely unsuitable for ensuring that judges are chosen in an informed way. The public only learn about judicial candidates voluntarily in their spare time, and generally pay little attention. As Erwin Chemerinsky and James Sample say, “Voters [in judicial elections] rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections.”
Justice Willett of the elected Texas Supreme Court says:
My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.
In addition to being an abject failure at providing informed rule by the people, judicial elections are largely a form of oligarchy or plutocracy. As Adam Skags of the Brennan Center for Justice points out:
No lawyer, no matter how talented, has a legitimate shot at winning a seat on the bench if they can’t perform well in the ‘wealth primary’ — so long before judges are on the ballot for the general public to vote, there’s a preliminary vetting process in which only the donors get to vote. This clearly is likely to skew the bench toward judges likely to be more sympathetic to the donor’s worldviews and priorities.
According to Justice at Stake, state Supreme Court elections are “politicized and costly contests, dominated by special interests seeking to shape courts to their liking.” In the 2013-14 election cycle, the candidate who raised the most money won contested state Supreme Court elections over 90% of the time.
According to former U.S. Supreme Court Justice Sandra Day O’Connor in 2010, “the single greatest threat to judicial independence now” is “the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns.” According to a 2002 study on the Ohio Supreme Court, the “worst method [of choosing judges] is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants and special interest groups, and retain their offices only by continuing to raise such funds.”
The American Constitution Society found in a 2013 study that the more campaign contributions judges receive from business interests, the more likely they are to rule in favor of businesses appearing before them. Also disturbing is the role of political parties. Among the groups pouring money into state judicial elections is the Republican State Leadership Committee’s Judicial Fairness Initiative, which is “directed toward electing to the bench conservatives who can safeguard GOP legislative victories.” The courts are supposed to be a check and balance on politicians, not their lapdogs.
Cheri Beasley of the elected North Carolina Supreme Court said her consultants told her she had to raise 1.2 to 2 million dollars in campaign funds to be competitive. To do so she filled much of her regular business hours with “one fundraising call after another.” However, as she pointed out, “We want judges that are focusing on doing their jobs and not focusing on being politicians.”
Another problem is that in elections, including judicial elections, younger citizens, low income citizens, and various racial and ethnic minorities, are very much underrepresented among those who vote. It would be much more democratic if all portions of the public had a say in choosing judges proportionate to their number.
Judicial selection juries
Instead of using popular vote, we need a genuinely democratic way to choose judges. One that is well informed, independent from special interests and political parties, and in which no portion of the public is underrepresented. The only way to achieve all of these things is for judges to be chosen by randomly sampled juries of citizens.
Such judicial selection juries could number from 15 citizens to several hundred citizens, with larger juries for the higher rungs of the judiciary. Jurors could be paid to work full-time for as many weeks as needed to choose one or more judges on an informed basis. Random selection would mean the jurors would be statistically representative of the public. By being a representative cross-section of the public engaged to take the time to make an informed decision, such juries would provide the democratic ideal of informed rule by the people.
Those interested in seeking judicial office could provide written applications to a jury, and then appear before the jurors to explain why they are a good choice for the office, and to answer any questions the jurors may have. Each jury could either choose one judge by majority vote, or could choose several judges, perhaps two or three, using a PR (proportional representation) method such as STV (single transferable vote).
If majority vote is used, there could be successive rounds of voting with the candidate getting the least votes in each round being eliminated until one candidate gets the majority of the vote. The remaining candidates could make further appearances before the jury between rounds of voting.
The procedures and arrangements for judicial selection juries need to be well designed to ensure an informed choice, and a fair democratic process. A commission chosen by jury could be tasked with working out the best possible design, but play only an advisory role, with all final decisions about the design being made by jury. In this way, the procedures and arrangements for judicial selection juries could be decided in a democratic and informed way, independently from politicians, political parties and special interests.
Judicial selection juries would put all qualified individuals interested in applying for a judicial office on a level playing field. As applicants would appear directly before the jury face to face and at length, there would be no need for costly television ads and campaign staff reaching out to the entire public, and therefore no wealth primary. Candidates with no special interest backers and no party affiliation, would be on an equal footing with those favored by big business interests, trade unions and political party establishments. The jurors would have an open democratic choice of all those wishing to apply, not a choice restricted by moneyed interests and political parties. Judges would be able to focus on their jobs, with no need to spend their days on election fundraising.
Random sampling would ensure that no portion of the public was underrepresented among the jurors. As hundreds of juries served over time, the total number of randomly sampled jurors would climb into the thousands. A random sample of thousands is an extremely accurate cross-section of the public.
Judicial selection juries would embody the equality of citizens because each citizen has the same chance of being randomly sampled as any other, and because younger citizens, ethnic minorities, and all other portions of the public, would be represented in proportion to their number.
Judicial selection juries put the selection of judges on the excellent and highly democratic basis of informed rule by the people, or of informed rule by a very representative cross-section of the people, independent from moneyed interests, billionaires, political parties and politicians, with no wealth primary, and with candidates being on a level playing field.
The people are the rulers, not politicians
The problem with choosing judges by popular election is not that it puts the choice in the hands of the people, but rather that it fails to do so, or does so very badly and inadequately. Fortunately, judicial selection juries provide a remarkably good and informed way for the people to choose judges.
In a democracy the people are the rulers, and are the highest and most legitimate authority, not politicians and political parties, nor the rich interests that fund their electoral victories. For this reason, the judiciary should be chosen by the people, not by politicians. All that is needed is a good informed way for the people to choose judges, something judicial selection juries can provide.
It would, of course, be absurdly undemocratic for the House of Representatives to be chosen by the President and confirmed by the Senate. It is just as undemocratic for the judiciary to be chosen that way. There is no reason why the people’s right to rule should be any more denied in choosing the judiciary than in choosing the House.
The third branch of government, the judiciary, is supposed to be independent from and co-equal to the other two. In order to fully respect this idea, judges need to be chosen independently from the other two branches of government.
Women, as equal citizens and half the population, should have an equal say in choosing the judiciary, something they are very much denied when politicians choose judges. 44 of the 50 state governors are men, the president has, so far, always been a man, and 80% of senators are men.
Younger citizens, the 99%, and the 45% of Americans who are political independents, are also very much underrepresented among politicians. As equal citizens, as opposed to second class citizens, all portions of the public should have a say proportionate to their number in choosing the judiciary, including women, younger citizens, each percentile of the 99%, and so on. Judicial selection juries would provide this.
The U.S. political system is to a large extent an oligarchy dominated by economic elites, as indicated, for example, in the 2014 study by professors Martin Gilens and Benjamin Page. The choosing of judges by politicians needs to end in order to have a firewall between the judiciary and any capture of the other two branches of government by economic elites.
In his 2015 book The Case Against the Supreme Court, Erwin Chemerinsky shows that “the Supreme Court usually sides with big business and government power and fails to protect people’s rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them.” ((Chemerinsky, Erwin. 2015. The Case against the Supreme Court. New York: Penguin, page 6.)) Perhaps if SCOTUS had always been chosen by judicial selection juries representative of the people, it would not have been skewed in favor of big business and government.
Politicians should not be able to fill the courts with their political supporters and ideological fellow travelers, pro big business judges, and pro-government judges, as if the courts were their private property existing to serve their agendas. The only way to stop politicians from doing these things is to end the practice of politicians choosing judges.
Judicial selection juries are a far better and far more democratic way to choose judges than either popular election or appointment by politicians. This is how judges should be chosen, at both the state and federal level.