Why Judicial Elections Are a Bad Thing

Why Judicial Elections Are a Bad Thing

Why Judicial Elections Are a Bad Thing

While progressives should celebrate JoAnne Kloppenburg’s win to replace a conservative justice on the Wisconsin Supreme Court, we should also recognize the dangers of elected judges.


To start, I want to provide a quick introduction. My name is Jamelle Bouie and I am an Alfred A. Knobler Journalism Fellow at The Nation Institute. My day job is at The American Prospect, where I am a writing fellow, and my work is mostly focused on political behavior and elections, with a particular interest in the nexus of money and politics. That said, I write about many things, and with any luck, I’ll have a chance to explore them here.

Now, on with the post.

This was lost in the uproar surrounding Representative Paul Ryan’s budget proposal, but yesterday—in his home state of Wisconsin—incumbent judge David Prosser lost to Assistant Attorney General JoAnne Kloppenburg in his re-election bid for the state Supreme Court. A Republican, Prosser, was widely known as an ally of Governor Scott Walker, and as such, was an obvious target for state Democrats. His defeat, by a slim margin of 208 votes, is the first electoral repudiation of Walker’s anti-worker agenda, and in all likelihood, a sign of things to come for Wisconsin Republicans.

While this is good news, it’s worth noting that—on the whole—electing judges is a terrible idea. To wit, the United States is virtually alone among advanced democracies in its commitment to the practice.

Why shouldn’t we trust individual citizens with the task of staffing a judiciary? Well, first, it runs counter to the entire idea of an independent judiciary. Elections require cash, and absent full and mandatory public financing, this means fundraising. Even in the best of circumstances, it’s difficult for a judge to appear impartial when, as a candidate, she relied on donors and special interests for support. This might not be a huge concern on a high-profile body, like a state Supreme Court, but it’s undoubtedly a problem among the thousands of lower-court judges chosen by popular ballot.

Indeed, election-year pressure can lead judges to alter their decisions; in a Pennsylvania study, for example, researchers found that all judges increase their sentences in election years, “resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.”

Beyond the possibility of undue influence, is simply true that judicial elections are low on the radar for most voters. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and far fewer barriers to bad behavior. In other words, judicial elections provide the illusion of popular control, at the expense of actual accountability. In an ideal world, we’d dispense with them entirely.

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