[Originally published at Dissident Voice on August 9, 2016]Judges should not be chosen by popular vote, nor by politicians. Both approaches are undemocratic and deeply flawed, perhaps even absurd, despite the fact that the former is in widespread use at the state level, and the latter has always been used at the federal level (in the form of appointment by the President and confirmation by the Senate). A far better option is for judges to be chosen by juries drawn from the public by random selection.
In Classical Athens, often called the birthplace of democracy, a wide range of decisions were made by juries drawn from the citizens by lottery. The jury method of democracy continues today in the form of the trial jury. Before looking at how juries could choose judges, a very brief review of what is wrong with judicial elections may be helpful.
Rule by the people needs to be exercised in an informed manner, because only informed views provide a good basis for a decision. However, popular election is extremely unsuitable for ensuring that judges are chosen in an informed way. The public only learn about judicial candidates voluntarily in their spare time, and generally pay little attention. As Erwin Chemerinsky and James Sample say, "Voters [in judicial elections] rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections."
Justice Willett of the elected Texas Supreme Court says:
My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.
In addition to being an abject failure at providing informed rule by the people, judicial elections are largely a form of oligarchy or plutocracy. As Adam Skags of the Brennan Center for Justice points out:
No lawyer, no matter how talented, has a legitimate shot at winning a seat on the bench if they can't perform well in the 'wealth primary' -- so long before judges are on the ballot for the general public to vote, there's a preliminary vetting process in which only the donors get to vote. This clearly is likely to skew the bench toward judges likely to be more sympathetic to the donor's worldviews and priorities.
According to Justice at Stake, state Supreme Court elections are "politicized and costly contests, dominated by special interests seeking to shape courts to their liking." In the 2013-14 election cycle, the candidate who raised the most money won contested state Supreme Court elections over 90% of the time.
According to former U.S. Supreme Court Justice Sandra Day O'Connor in 2010, "the single greatest threat to judicial independence now" is "the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns." According to a 2002 study on the Ohio Supreme Court, the "worst method [of choosing judges] is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants and special interest groups, and retain their offices only by continuing to raise such funds."
The American Constitution Society found in a 2013 study that the more campaign contributions judges receive from business interests, the more likely they are to rule in favor of businesses appearing before them. Also disturbing is the role of political parties. Among the groups pouring money into state judicial elections is the Republican State Leadership Committee's Judicial Fairness Initiative, which is "directed toward electing to the bench conservatives who can safeguard GOP legislative victories." The courts are supposed to be a check and balance on politicians, not their lapdogs.
Cheri Beasley of the elected North Carolina Supreme Court said her consultants told her she had to raise 1.2 to 2 million dollars in campaign funds to be competitive. To do so she filled much of her regular business hours with "one fundraising call after another." However, as she pointed out, "We want judges that are focusing on doing their jobs and not focusing on being politicians."
Another problem is that in elections, including judicial elections, younger citizens, low income citizens, and various racial and ethnic minorities, are very much underrepresented among those who vote. It would be much more democratic if all portions of the public had a say in choosing judges proportionate to their number.
Judicial selection juries
Instead of using popular vote, we need a genuinely democratic way to choose judges. One that is well informed, independent from special interests and political parties, and in which no portion of the public is underrepresented. The only way to achieve all of these things is for judges to be chosen by randomly sampled juries of citizens.
Such judicial selection juries could number from 15 citizens to several hundred citizens, with larger juries for the higher rungs of the judiciary. Jurors could be paid to work full-time for as many weeks as needed to choose one or more judges on an informed basis. Random selection would mean the jurors would be statistically representative of the public. By being a representative cross-section of the public engaged to take the time to make an informed decision, such juries would provide the democratic ideal of informed rule by the people.