The Wall Street Journal today published an interesting op-ed piece authored by retired Supreme Court Justice Sandra Day O’Connor criticizing the role that special interest groups and campaign cash have come to play in state judicial elections. Justice O’Connor points out that 39 states currently have some form of judicial elections. In my own state of Pennsylvania, the recent races for 2 open Supreme Court seats were the occasion for record expenditures by judicial candidates in the Commonwealth, and saw the employment of campaign tactics heretofore not widely seen in judicial races.
While I do not wholly agree with Justice O’Connor’s diagnosis – I am not convinced, for instance, that any alternate form of slecting state court judges will be any less free of political considerations and influence than popular elections, including merit selection – and also disagree with some of her prescribed cures, I think that she nonetheless correctly identifies judicial elections as a problem that needs fixing. With respect to apellate judges, most particularly, the work that judges do and the qualities that make for a good judge are not necessarily best identified through the rough and tumble of a political campaign (which is not to say that issues of judges and jurisprudence do not have a place in election contests between candidates for political office of opposing parties).
There is also the risk, identified by Justice O’Connor, that a single political issues that captures the imagination of the public will infect and influence the outcome of judicial elections even where the issue is not necessarily one on which judicial candiates should be judged. We saw that here in Pennsylvania as certain well meaning political groups sought to defeat Supreme Court Justice Thomas Saylor’s bid for retention as a consequence of the still simmering pay raise controversy. Justice Saylor is a thoughtful and competent jurist who, thankfully, prevailed in his retention race. It should never have been an issue, and it was only because of the phenomenon of judicial elections.
The federal system of nomination of judges by the executive, and confirmation by the legislative apears to work, in most instances, very well. The involvement of the political branches in this fashion assures that the electorate, through their democratically elected representatives, has a say in who sits on the bench. At the same time, the judiciary has some degree of insulation from the pressures that electoral politics can bring to bear, and have a far greater ability to maintain an appropriate level of independence.
While I may not agree with Justice O’Connor’s take on this issue in all respects, she is to be given due credit for focusing our attention on this critical issue.
Filed under: Judges, Judicial Elections
