Elected judges, as advocated by the Taiwan Jury Association, might solve some problems, but they can create others, none the least of which is politicization of the judicial system, so it is not a panacea (“Jury proponents call for US-style elected judges,” July 21, page 3).
Once judges need to find political support, it is almost natural that they will gravitate to a political party. So judicial elections do not always resolve one of the major issues posed by judicial appointments.
However, it gets worse. Once elected judges are on the bench, the game of “venue shopping” comes into play. A party that wants to sue another will invariably look for a judge who is likely be to sympathetic to its cause and find some excuse for bringing that suit to the jurisdiction of the preferred judge.
That game can be played whether judges are elected or appointed, as it often is in the US, but it seems to be more prevalent in states with elected judges. And it gets worse: Political contributions will flow from potential parties to those judges who are more likely to favor the possible problems of the people and institutions who are wealthy enough to donate.
Then comes the question of whether the effect of venue shopping and transparency in the election process will have the appearance, and maybe the reality, of actual bribery.
Worse still, it can become a vicious circle in which the venues with the most extreme judges will be the most highly “shopped,” creating a situation in which justice becomes an unattainable ideal.
Perhaps there are better solutions. One would be to give more power to juries, especially to go beyond the verdict and limit the ability of judges, whether elected or appointed and whether in the local courts or appellate courts, to determine the penalties.
That would be more likely to avoid the problems attributed in the article to “dinosaur judges.”
What is almost as bad is that the statements in the article convey a picture of the judiciary in the US that does not seem to be close to the truth and is likely to mislead.
As far as I have been able to search, nobody claims that any US federal judges at any level are elected; they are nominated by the president and have to be approved by the US Senate. Elections in that tier of the judicial system just do not exist.
At the state level, things are much more complicated and sources vary in how many or what states use different systems at different levels.
The main systems are “partisan elections,” in which political parties each choose one person to run for each opening; so-called “nonpartisan elections,” in which anybody can run, but are often endorsed by parties or must place their party affiliation on the ballot; “assisted nomination,” in which either the legislature or a panel designated by the governor selects the nominee; and simple appointment by the governor and “uncontested retention elections” used for reappointments, which means that if people want to vote down a corrupt judge, there have to be enough people to give one person more votes than the incumbent.
As an example, according to the American Bar Association (ABA), for the highest court, six states, with about 18 percent of the US population, have partisan elections for all appointments and reappointments; two states, with about 8 percent of the population, have partisan elections for the initial appointment and uncontested retention elections for reappointments; and 14 states, with about 16 percent of the population, have nonpartisan elections.
These tiers do not cover half the population of the US.
Things may be better at the trial judge level, with eight states holding partisan elections and 20 holding nonpartisan elections.
However, as the ABA notes: “State supreme court candidates raised a total of US$45.6 million during the 2000 judicial elections, a 61 percent increase over the amount raised by candidates in 1998. Lawyers and business interests account for 49 percent of all contributions to supreme court candidates. Partisan judicial elections are by far the most expensive, with candidates raising an average of US$380,724 in 2000 (as opposed to an average of US$107,388 raised by supreme court candidates in nonpartisan elections).”
In discussing public confidence in the legal system, it states: “Seventy-six percent of voters, and 26 percent of state judges, believe that campaign contributions made to judges have at least some influence on their decisions. Sixty-two percent of voters — including nearly 90 percent of African-American voters — feel that ‘there are two systems of justice in the US — one for the rich and powerful, and one for everyone else.’”
Nine in 10 voters, and eight in 10 state judges, say they are quite concerned about special interest groups buying advertising to influence the outcomes of judicial elections (Justice at Stake Campaign, National Surveys of American Voters and State Judges, October 2001 — January 2002. Available at www.justiceatstake.org).
When a group of lawyers has to point out that 26 percent of judges admit a belief that campaign contributions may tilt the scales of justice, it would seem unwise to jump to action without reviewing the facts and considering other alternatives.
Emilio Venezian is a former visiting professor at Feng Chia University.
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