The Founders understood that a co-equal, independent judiciary is essential to check the elected branches, and electoral factions. So our Constitution vests federal judges with lifetime appointments.
Insulated from politics after politicking for nomination, this theory goes, federal judges can analyze the law without fearing for their livelihoods. These unelected judges are meant to be accountable to law and Constitution alone.
But most states do things differently. Judicial elections offer the popular accountability designed out of our national government. But the consequences are exactly what the Founders feared : Influence is vested in layperson emotion and campaign benefactors.
Every election cycle brings attack advertising. Judicial elections are no exception. Without regard to law or Constitution, or even facts, advertisements highlight how judges have sided with child predators, freed people on “technicalities,” or otherwise chosen criminals over public safety.
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But cases are not reversed on “technicalities,” which is inaccurate shorthand for government violating someone’s rights. Our system demands competent defense counsel even for — especially for — the most heinous offenses. Our criminal law’s foundation is this principle: “it is better that 10 guilty persons escape, than that one innocent suffer.”
Judicial attack ads ignore all three of these fundamental principles.
Attack ads play on heartstrings, and the raw emotion that follows defendants escaping prosecution. But doubt not, criminal defendants have the exact same number of rights as you and me. When a criminal defendant loses a right, so do you.
The Brennan Center for Justice has documented an increase in ads attacking “soft on crime” jurists, while touting “tough on crime” credentials. Unsurprisingly, the Brennan Center found that judges meted out more punitive sentences as elections approached, and ruled against defendants more frequently.
Despite rulings that give government agents ever more power, electioneers often wrongly spin these decisions as making us safer.
Raw emotion is the wrong tool for making legal and constitutional decisions. Hard cases make bad law. Bad law can end a republic. And political ads can lead directly to bad law.
Elected judges also need money and they must raise those funds. Like, from lawyers who regularly appear before them. And from out-of-state economic interests. And from super PACs and dark-money groups that can raise and spend practically unlimited amounts, even from anonymous sources.
Where judges are elected, lobbyists and interest groups can invest not just in legislatures, but also in courts. Louisiana offers a prime cautionary tale. Its last supreme court election was likely to determine numerous lawsuits pitting coastal parishes against the oil and gas industries. With millions of dollars hanging from the scales of justice, November 2016 saw the most expensive judicial race ever run in Louisiana.
Where judges are elected, law is made not just by litigants arguing law before neutral arbiters but also by interested parties handing campaign cash to politicians to stack the deck.
Lawyers are trained to separate personal from professional. But few minds can divorce themselves from the money supporting election, or from voters supporting their (or their opponent’s) election. “There are men who could neither be distressed nor won into a sacrifice of their duty,” Alexander Hamilton recognized in Federalist Number 73, “but this stern virtue is the growth of few soils.”
Elected judges allow popular accountability. But popular accountability comes at a steep cost. When judicial decisions can depend on who gives money, and whether poorly informed voters are upset, we are all poorly served.
There is no flawless solution. Jurists facing retention votes — up-or-down elections about keeping their benches — suffer from the same electoral needs. Term-limited jurists must still feed their families after the robes. Meanwhile, lifetime appointments risk despots without fealty to anything but their own fiefdoms.
Sound jurisprudence simply cannot fit onto bumper stickers, or into 30-second ad buys.
Our independent judiciary cannot protect due process and the rule of law if it requires paid politicians to beg campaign donors amid electoral hysteria. Elected judges are, very simply, bad for the republic.
Jay Hurst is a federal attorney based from Durham, N.C. while living in Lexington. He concentrates on criminal sentencing, appeals, post-conviction matters and the Freedom of Information Act. Reach him at firstname.lastname@example.org.