The problem isn't that judges are elected, but that it's nearly impossible for voters to make an informed decision.
In the last election, I tried to find out about the local judges on my ballot and could find virtually nothing.
The media has been neutered in to an infotainment machine, so there's very little investigative journalism left even on issues of national or international importance, much less on small issues like who your local judges are and how they rule.
This is definitely one of the problems. There was a study that showed judges were handing stricter sentences for the same crime during election years than non election years ("tough on crime"). Elections are a popularity contest in a way, even well informed voters do not always make rational decisions.
If one doesn't have elections to worry about, he/she can do their job to the best of their ability without thinking about pleasing anyone or pandering to any one group, just good old honest work. The moment they have to think about elections, things change. What kind of judge would you like to have - someone who is totally honest and fair without giving a crap about what others think, or someone who is trying to be popular?
Yes, because unaccountable lifelong appointed judges works so well in other spheres, yes?
Jefferson, Madison, at al feared the Judiciary for a reason. Particularly the Federal tier. Elected judges have a built in check in that they are subject to periodic reaffirmation of confidence from the populace. An appointed judge just needs the right connections once, and to not do anything on such a regular basis that they become the subject of an ethics investigation.
What about appointed judges with a long term? 10 or 12 years - that's longer than legislators or executive branch people. It gives them more independence but also ensures a turnover of people and ideas. Do it on a rolling basis so that every 1 or 2 years a judge from the court has to step down.
Still somewhat leery of it, in particular with double the term length of a Senator. The longer in office, the more attractive a target for graft one becomes. I think Senators may be the upper limit I would be willing to see without reaffirmation.
Then again, maybe you could make a longer term work with some sort of "anti-election" mechanism. You vote in/appoint/have judges nominated by the bar, whatever, and periodically, a dismissal election is held. If a certain threshold of votes for dismissal/no-confidence are cast, then that triggers a conventional election/run-off for that judges spot. In that sense, the judge no longer has to actively politik, though those vying for the spot are free to campaign to try to get people displeased enough to trigger an election.
It still seems like it may only work with a populace who stays on top of their judges, but I actually kind of like the idea because in theory, good judges would never really be upset from business as usual, bad ones would very quickly become apparent in theory, since the number of corrupt supporters would be very unlikely to dwarf the number of "victims" of the judges corrupt acts, and you get away from some of the politicization of the position except when the public clearly has a change in the winds of policy in mind, in which case the election may put the judge back in office, but with renewed attention to the change in civil sentiment.
I don't know, it just feels better to me that way. I mean I do kinda get where Go's coming from, and I semi-dig it. I just don't think judges should ever be more than arms length away from the people whose lives they impact most.
I'm pretty sure it is... why would you elect a judge? They're not supposed to apply any opinion just interpret the law technically. What are people voting for them based on? Their political affiliation? That's absolutely bonkers.
The main boon is that a judge can be removed democratically. Obviously there are better ways to do that, like having a recall process or a vote of no confidence, but the USA's states were mostly created during a time when being able to vote judges out of office was politically trendy.
Also, speaking as somebody who recently voted for local judges and prosecutors, I got to choose a prosecutor who won't take police-union money and a judge who thinks they can do better than the possibly-corrupt incumbent. I wouldn't give up this vote just for some imagined peace in the political process.
> I got to choose a prosecutor who won't take police-union money
You see this seems massively inappropriate in the first place. Take that money for what? A prosecutor shouldn't take any money from anyone, in any circumstance, apart from their salary. They shouldn't even be talking to a political organisation like a union.
Both things seem like grounds for automatic dismissal for a prosecutor. Why are you having to check for it as a voter?
The district attorney, being an elected prosecutorial position, can spend money during the election; I chose the candidate who did not have a political action committee funded by the police union.
Yes, it's stressful being a vigilant voter. But what's the alternative? Not caring?
So the main benefit of being able to vote for judges is that you can vote against one who is doing something that wouldn’t be allowed in a sane system anyway, by voting for one who did the same thing just with groups you don’t disapprove of...?
The alternative is actually having punishments for officials that are corrupt or breaking the law.
Instead we have a situation where, as the article points out, corruption is swept away where people get to walk away with a cozy retirement and say 'well gosh I regret my mistakes' as if that fixes the fact that they ruined someone's life over a failure to pay traffic fees.
That's the example of the revolving door and people who abuse it get away scott-free.
The reality is there is quite a bit of wiggle room in the interpretation of the law. Someone who is conservative and 'tough on crime' may want a judge who is biased toward stricter prison sentences. Someone who is more liberal may want a judge who shows more leniency and is biased toward finding other ways to rehabilitate the guilty.
Its kind of like how two competent people can implement a POSIX compliant operating system in different ways (microkernel or monolithic, emacs vs vi, systemd vs sysvinit).
Their qualifications, history, and biases. I mean it isn't like most judges are getting the position without having a law degree, so the majority of them are in fact qualified for the position. So how else do you fill a public position when you have multiple qualified people and a single position. The argument for election is so to reduce nepotism and cronyism.
> They should leave them at home if they're a freaking judge!!
You're telling me that Gorsuch doesn't have biases? RBG? Kavanaugh? Roberts? Sotomayor?
All these people interpret the same laws in different ways. If that isn't called bias than I don't know what is. The issue is that there is no objective truth, at least one which can be known. All laws are subject to interpretation. In fact, that is literally why we have judges and juries in the first place. To scrutinize and check interpretation of laws.
Are you telling me there's an objective truth to what "Freedom of Speech" means? What "the right to bare arms" is?
Do you realise that in most other countries judges don't expose any political bias? There are no right-wing judges or left-wing judges in the UK, they all just act fairly and interpret cases according to the law.
If there are major questions of interpretation they leave it to the legislature to clarify.
I think you're confusing "publicizing political bias" with "having political bias." Judges aren't robots. They aren't void of emotion. They are humans. Yes, we all ask that judges do their best to remove their biases. Most do a good job. But as far as I'm aware, they are all still people.
I'm not sure why you would expect judges to be a special class of people that are void of opinions.
> In the last election, I tried to find out about the local judges on my ballot and could find virtually nothing.
In my last election I had the voting booklet. There were two judges running for a position. One had a website and the other (the incumbent) didn't.
Honestly, a lot of candidates I found didn't have websites. If you aren't going to take the time to make a simple website to state your policies I'm not sure I trust you to be transparent and make decisions on my behalf. In 2020 if you don't have a website you are demonstrating to me that you don't want to inform me, the voter, about yourself.
I don't understand why a judge would have a website. That's so crazy to me. They're not supposed to be appealing to anyone. They're supposed to interpret the law as it's written. They're technocrats.
What would you like to see on a judge's website? Their opinions on things? They shouldn't have any personal opinions!
> What would you like to see on a judge's website?
Qualifications, what ideals are important to them, how they handled complex cases, etc
> They shouldn't have any personal opinions!
Unfortunately they are human, so they do have personal opinions. They are allowed to have personal opinions. They just aren't allowed to have party affiliations. But if you look at the supreme court this is clearly also an absurd notion to expect them to not have leanings.
This is bat-shit insane to me. The public elect the legislature who write the law... the judiciary implement it according to the legislation. They don't any personal opinions to it, that's not their job at all, they don't try to appeal to anyone, they just implement it. Is this not how it works in the US?
In the US could a town elect a judge who says they're going to convict everyone who's left-handed?
Which part is confusing? Can you answer this? "Are laws objective?" It seems you think so. But if they aren't, then someone needs to interpret them. This is essentially what lawyers are doing and the judge and jury decides what is right.
> they don't try to appeal to anyone, they just implement it. Is this not how it works in the US?
On paper, yes. In practice, no. Because again, laws aren't objective.
> In the US could a town elect a judge who says they're going to convict everyone who's left-handed?
Let's rephrase it.
> In the US could a town elect a judge who says they're going to convict everyone who's black?
Welcome to Jim Crow era. So the answer is clearly yes. Of course, conviction still relies on the jury and "jury nullification" exists in an effort to put these types of judges in check. This is why you're supposed to be judged by peers. Now there is interpretation of what peers means. Or what community is. Is this your neighbors? Or is this just people that live in the town? Are people in the Brooklyn your peers if you live in Queens? What about if you live in Mountain View? If you do a search you'll quickly find different answers from legal scholars as to what "jury of peers" means. I brought up the first and second amendments because these are frequently debated in the public domain (where judges/legal scholars are debating and we the public can see and listen in).
To me, the idea that laws are objective and not up for interpretation is "bat-shit insane." To do so would require perfect humans writing laws and last time I checked we didn't have any of those.
> If they're open to too much interpretation... send them back to the legislature to clarify.
Good idea. Now what do we do in the mean time with people that are being tried? Wait? How? Are they free or in jail? What's the default position?
Or do we just do our best (i.e. interpretation)?
> Well this seems like an indication to me that the system is not great.
Well... yeah... I don't think anyone has claimed it as such. If you have a better system I think a lot of people would be happy.
The issue is that there's lots of nuances involved. Even if we had Multivac judging it would still be difficult. People can't write code to be absolutely unambiguous and error proof. Code that takes into account every possible scenario. So I'm not sure why you would expect people that are in a more complex feature environment and using a less precise language would be able to perform better. This is really absurd, to me.
HUMANS ARE NOT PERFECT ROBOTS.
And I'm not sure why this is a controversial opinion.
> And I'm not sure why this is a controversial opinion.
I think by asking them to stand for election you make them less perfect and amplify their flaws, because they have to appeal to some sector. Do they appeal to left-wing extremes, or right-wing extremes? They can't easily target both. They can't just do what they think is right. They have to pander to some niche.
Plainly applying the law doesn't win votes.
The only people who will votes are those who promise to twist it to some extreme.
Great, something to actually discuss. I'll refer to a comment in another thread.
> The argument for election is so to reduce nepotism and cronyism.
So we come back to the question: "Which is better? Elected judges or appointed judges?"
> They can't just do what they think is right. They have to pander to some niche.
The question is about who's bias you are using to appoint the judge. Are you using the bias of current lawmakers/elites? Or are you using the bias of the public? You're right in that they have to pander to some niche. So which do you want?
I also mentioned in another thread that the point of democracy is to distribute power. Letting officials is a consolidation of power. Letting the public do it is distribution. There's advantages to both.
And honestly, looking at voter information guides, judges are mostly talking about their qualifications and how they are unbiased. In my last guide there were two judges. One said that he served the community well and cited some cases. The other said we need more transparency and that as a judge he would make rulings public to increase transparency of the law. Neither were really pandering to parties. Judges aren't allowed to be affiliated with parties. Neither of those judges were saying things like: "We're going to get those black people," (like Jim Crow era) "I'm a liberal and hold left-wing values," or even things like "I'm concerned with immigration law." The latter because it would be considered political. There are guidelines. These guidelines are to restrict their ability to make party appeals. At least pandering to the public is more transparent.
But when it comes down to it, it really is a question of who they are pandering to, not if they pander. There has to be some mechanism to appoint judges, and they will just pander to whoever is in charge of that.
Do you come from a country with common law or civil law? Common law is all about opinions and consideration of precedent. It grants a wide range of flexibility to judges.
Civil law is a lot less flexible. Most of the world uses civil law. Common law is I think exclusive to the former British colonies.
They absolutely have opinions, often about how to interpret the law. This is why Supreme Court decisions always have the "dissenting opinion" document listing out why they think the majority decision was incorrect.
Many laws are not so black and white that the decision is explicit. You have to handle weird chain of custody questions, whether evidence was seized lawfully, etc, etc.
Check the endorsements from local bar associations. Read the endorsements from various news outlets. They may not agree but may provide some background information to help with your choice. You can also (most time consuming) pull court records.
In the last election, I tried to find out about the local judges on my ballot and could find virtually nothing.
The media has been neutered in to an infotainment machine, so there's very little investigative journalism left even on issues of national or international importance, much less on small issues like who your local judges are and how they rule.