In some activity for this long dormant thread, The New York Times publishes a report on some research on the performance differences between appointed and elected judges:
… any number of studies have found that elections can affect judicial behavior.
One released last week, for instance, found that elected judges are less likely to support gay rights than are appointed ones. The effect was most pronounced in cases decided by judges who ran in partisan elections.
That seemed the case on Friday, when Roy S. Moore, chief justice of the Alabama Supreme Court, was suspended for the rest of his term for ordering the state’s probate judges to defy federal court orders on same-sex marriage.
Appointed judges who must face retention elections also have reason to be sensitive to public opinion. In 2010, voters in Iowa removed three State Supreme Court justices who had joined a unanimous opinion allowing same-sex marriages.
Earlier studies have shown that judges facing re-election are more likely to impose harsh criminal sentences, including death sentences.
Further results for gay rights and the judicial system:
… the results lined up predictably: the more political the selection mechanism, the less support for gay rights. State Supreme Courts whose justices were elected in partisan elections supported gay rights 53 percent of the time. The number grew to 70 percent for nonpartisan elections, to 76 percent for retention elections and to 82 percent for appointed systems.
This motivates me to evolve my thinking on this issue since the last time I addressed it. In the blunt-force thinking of populism, it seems only natural that judges should be elected rather than appointed – thus permitting the correction of a system possibly prone to corruption by the appointing authority. But, as experience shows, an electoral process exposes the republic to a different set of befouling influences. Sometimes it’s difficult to remember that the vote is not given to the electorate because they are wise, but as a mechanism of buy-in: the disenfranchised citizen is more likely to riot than the voter who at least had the opportunity to join the discussion and select a leader, even if their favored candidate has lost.
A judge subjected to electoral pressures has, as a boss, not just the electorate, but even more importantly, those who are most strident: the ideologues who strive for some specific goal, whether it be adherence to a religious position, or defense of noxious industries, or some other goal repugnant to the Republic as a whole. Sometimes the electorate is even persuaded to elect those strident, wrong voices. And the citizenry may not be aware of the negative repercussions of such positions; indeed, as in the case of Alabama Supreme Court Chief Judge Moore, his predilection to place religion above state places the Republic at risk – even if he doesn’t think so, history is not on his side.
A judge who is appointed, and once appointed immune to dismissal without cause, must instead adhere to the judicial standards instituted by the judiciary. Of course, this can protect the awful seat-holder to an unseemly degree, but on balance, it seems likely that the greater good is served by the appointee better than the elected. Their independence from zealot and fad is greater, and they may ignore the licit influence of those who do not put the Republic ahead of themselves. (Neither is immune to illicit influences, whether they be the carrot or the stick.)
Wisconsin’s Supreme Court is elective in supposedly non-partisan elections. Mother Jones‘ Pema Levy reported in 2015 on how the court has transformed into a conservative bastion:
The Wisconsin Club for Growth and WMC [the Wisconsin Manufacturers & Commerce] are top players in a years-long undertaking by Walker and his allies to create a conservative majority on the Supreme Court that is friendly to conservative policies—an operation that has included spending millions on ads, ending public campaign financing for Supreme Court elections, rewriting the court’s ethics guidelines, and amending the state’s constitution. This effort has led to one of the most partisan and dysfunctional judicial bodies in the country, a court with liberal and conservative justices who won’t appear together in public. And it could well end up benefiting the conservative groups under investigation should the jurists they helped elect rule the probe should stop.
“This large amount of money and special interests has impacted the workings of the court, the reputation of the court, and how it’s interacting internally,” says former Wisconsin Supreme Court Justice Janine Geske, who served on the court from 1993 to 1998.
The Wisconsin Club for Growth and WMC first began pouring millions into state Supreme Court elections in 2007, when the groups spent an estimated $2.9 million on ads backing conservative candidate Annette Ziegler for an open seat on the Supreme Court and attacking her opponent. Total spending on that election topped $5.8 million, four times the previous record for a Wisconsin Supreme Court race. The following year, the same groups spent more than $2.7 million on ads aimed at unseating sitting Justice Louis Butler, a liberal, and electing conservative candidate Michael Gableman. The election was so nasty that racially-tinged ads released by Gableman’s campaign were compared to the infamous Willie Horton spot from the 1988 presidential election.
Naturally, the thought of Governor Walker, a conservative icon and GOP Presidential candidate, whose tenure as governor has been marked by uproar and failed promises, appointing Supreme Court justices must bring one up short. However, as ideologues will often fail and be removed by disillusioned voters, so term-limited judges can also be removed, if only by time – and often, as in the case of Judge Moore, they can be removed for good reason. That is the thing about religious zealots and ideologues: they are so certain they are right, or so greedy for power, that they forget there are standards to be met, and punishments for not reaching them, that can be invoked upon them, even if they are convinced they are God’s gift to mankind.
