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TaoSan's avatar

Are "elected" judges really a good idea?

Asked by TaoSan (7038 points ) February 17th, 2009

I was just driving through town, and you can still see the “Vote Judge SoAndSo” signs hanging around everywhere. Then, it just so happens that I saw a documentary about that one judge in Texas punishing people with public humiliation walking a sign “I stole from WalMart” up and down the street.

It all made me wonder, shouldn’t judges be professionals practicing law, as opposed to politicians worrying about the next elections?

I see two particular problems:

a) Our legal system is a case law system, meaning laws only provide a framework, leaving a huge measure of discretion/prerogative to judges. This means, when someone gets “punished”, they only partially look at the law, and mostly towards how it’s been done before, case precedent. So previous cases strongly influence the outcome of new cases. What this means in all actuality is a whole lot of at times very unfair sentences. Unfair to the effect that the very same violation may lead to very different sentences, depending on the “Flavor of the month”. I’m having trouble expressing this right, I’m not a lawyer.

b) The constitution very clearly assigns the power to legislate to federal and state governments, not the courts. However, seeing that we have the aforementioned case law system combined with elected judges with this huge latitude given to them, de facto the people who vote influence the law, but not in the manner envisioned by the founding fathers.

Do you think that works out?

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15 Answers

jrpowell's avatar

I think they should be appointed. Politics isn’t needed when interpreting law. That is why I don’t mind people on the Supreme Court being appointed for life. They don’t need to pander. They already have the job.

LKidKyle1985's avatar

Yeah I am not necessarily a fan of elected judges either. I feel like it is on the bottom of the list of positions that people actually make informed decisions about. It usually comes down to is he Dem or GOP. So you don’t really have people voting for them based on their merits as judges.
However the flip side of that, if you elect a Dem or GOP and they are the ones who pick the judge, they are gonna pick a Dem or GOP judge anyways. So I dunno, but I think you are right I feel like judges shouldn’t have to worry about being politicians.

Blondesjon's avatar

@johnpowell…Are you trying to say that the appointment of Supreme Court Justices is not political?

@TaoSan…There is an appeals process to check this unmitigated power that our Hazard County court sytems weild.

jrpowell's avatar

@Blondesjon It is certainly political. But after they are selected they can stray. It has happened a few times.

marinelife's avatar

How do you keep politics out of appointing judges? It seems to me that could be as or more political.

Blondesjon's avatar

@johnpowell…True enough. I guess it really boils down to which flavor they stray to. Does abortion ‘taste great’ or is it ‘less filling’? Is the constitution set in stone or is it more of a guideline? Does Clarenc…forget it, I’ve just officially driven myself to drink.

KrystaElyse's avatar

I think i’m on the fence about this one. If judges were to be appointed, then we would generally assume that the person making the appointments would have a lot of input from people in the know as to who would truly be qualified to serve. The electorate generally does not have that knowledge and so people end up being elected based on many things other than on their qualifications. Also, the electorate may penalize a judge if he/she takes an unpopular position on a legal matter even if their position is the legally correct one.

But the process of appointment can be flawed too. If the person making the appointments decides to put in either their friends or people who helped them get into political office, then this can mean that past campaign contributions or other favors to the person making the appointment can be more important than other qualifications.

wundayatta's avatar

We have elected judges in Pennsylvania, and we get some real doosies. I’m leaning towards appointed judges, on the theory that the totally incompetent and corrupt might not get elected. We get lots of judges who end up on the other side of the bar, being prosecuted for everything from failure to pay taxes to failure to maintain property in a safe way.

On the other hand, the people’s will is the people’s will, and if they want corrupt judges, shouldn’t they be allowed to have them? This is, after all, a democracy, not a meritocracy.

I dunno. I’d rather have competent judges.

lefteh's avatar

I don’t have strong opinion on this, but this article is worth a read. I came across it a few weeks ago. It’s written by Frank Kopecky, a professor with the Center for Legal Studies.

Blondesjon's avatar

Why is everyone so content anymore to leave our decisions to someone else?

jrpowell's avatar

@Blondesjon Bush was picked twice.

Blondesjon's avatar

@johnpowell…Hilarious (in a terrifying way) and true but if every pick was a winner would’nt we live in some grand Utopia where the beer flows like wine and women treated oral sex like chocolate?

TaoSan's avatar

Hm,

Federal Judges are appointed anyways, so that’s a good thing. Now, as for the “political” aspect, I do believe that if you run through the system to eventually become an appointed judge, you’re in it for the law, and not for politics.

Once appointed, independence is guaranteed.

As johnpowell mentioned, we’re not necessarily known for smart voter output and always choosing the right people.

I’ve been pondering over this a little bit now, and came to the conclusion that I don’t want judges, that are judges because they receive support from special interest groups, know how to present a speech, or in some cases only “look good”. We had enough of that.

On the other hand, how do you “measure” the performance of a judge?

To elaborate a bit more on my way of thinking. I do think that “elected” judges de facto undermine the constitution, since legislature, and legislature alone is empowered to “make” law.

Judges have the power to actively “influence” application of the law (which per constitution is reserved for legislators) with case precedent, thus, elected judges “take it to the streets” in order to get their votes; and there, it doesn’t belong.

Blondesjon's avatar

@TaoSan…That only holds true if you believe the constitution to be a set of unwavering, unchangeable, rules.

that only an appointed set of judges can tinker with

TaoSan's avatar

@Blondesjon

I wouldn’t necessarily think so. There are many aspects of the constitution that are certainly debatable. When it comes to appointing or electing judges tho, I think the very trinity that is the republic/union is being “diluted”.

The people vote the legislators, the legislators make the laws, the judicial branch applies and interprets them. There’s not a lot of room to wiggle there. Defenders of the election process love to cite that the people should be involved in making the law. To apply that to electing judges is faulty logic tho, because the people elect the lawmakers. So why an avenue to “second guess”?

However, I’m sure that someone would find an interpretation of the constitution to the effect that appointment only would be unconstitutional. So you’re right, that would probably be a question for the supreme court.

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