The View From Washington Gonzaga law professor David DeWolf invokes Winston Churchill when defending judicial elections: It’s the worst method, but better than all the rest. Elections help keep judges accountable.
Posted: September 10, 2007 By DAVID DeWOLF To borrow from Winston Churchill's description of democracy, electing judges is the worst way to choose them – except for all the others. The common reason for opposing judicial elections and favoring appointment is that judicial elections will turn judges into just another political branch of government, instead of preserving the independence and impartiality that we expect of our courts. However, just as democracy produces many evils - but on balance turns out to be preferable to the alternatives – judicial elections result in greater, not lesser, conformity to the rule of law. The "rule of law" is a value that is almost universally shared. But (as might be expected) its precise application is subject to considerable debate. Just as the phrases "judicial restraint" and "judicial activism" have been decried as conclusory epithets that convey little descriptive value, the commitment to the rule of law may seem like a hopelessly vague concept. But it is a useful starting point to identify what it is we expect of judges and how the method of selecting judges might encourage (or discourage) respect for the rule of law. The rule of law means that in the administration of justice attention is paid to the impartial enforcement of the rules previously agreed upon through the normal legal process. By contrast, diversion from the rule of law means that some extraneous consideration – a personal, political, or ideological agenda on the part of the decision maker – has been allowed to influence the outcome in a given case. Judges are clever enough, and the law complex enough, that even the most egregious departure from the rules can usually be disguised by appealing sounding "principles" that require the result. George Orwell's Animal Farm provides an example of a rule ("All animals are equal") whose application must be tempered by another rule ("But some animals are more equal than others"). A commitment to the rule of law means that we recognize this temptation and agree that we should follow the agreed-upon rule, even if it produces an outcome that, for whatever reason, makes us uncomfortable. Now to recognize the weaknesses of a system of choosing judges by popular election, there is the very real risk that judges will come to the bench with an agenda, indeed with an expectation on the part of those who voted for that judge that he or she will represent that agenda in the same way that a legislator will fight for an agenda that was the basis for winning the election. We applaud that aspect of our political system, but we don't want it in the judiciary. If legislators and members of the executive branch are like partisans in a baseball game, the judiciary is composed of umpires. An umpire may have formerly been a fan of the American League or the National League, but in umpiring a World Series game we expect that the personal preference of the umpire would play no role in whether the pitch was a ball or a strike or the runner is out or safe. When a judge is either elected or appointed to the bench, particularly in the case of judges for courts of last resort, such as the U.S. Supreme Court or state supreme courts, there is frequently speculation as to the agenda that the individual is likely to pursue. It is frequently assumed that a judge will conform to the values and preferences that were displayed either in previously held judicial office or in public expressions, such as speeches and articles, that the judge has produced. Recent confirmation hearings for the U.S. Supreme Court featured extended attempts to extract from the nominees evidence of an agenda that the nominee would likely pursue if confirmed. By contrast, the nominees were anxious to demonstrate that they had no agenda, or if they did, it would not affect the performance of their duties. Because the danger of straying from the rule of law in judicial decision-making is present even in lifetime appointments to the bench, it is thought that electing judges would only exacerbate the problem. To gain favor with the electorate, a judge would need to appear committed to the values and the preferences of the majority. Slogans such as "getting tough on crime" or "reining in big business" might become the basis upon which a campaign for judicial office was conducted; even if the candidate himself or herself avoided any such promises, advocacy groups campaigning on behalf of the judge might easily adopt such tactics. As was acknowledged at the beginning of this article, selecting judges by election is not a perfect system. But now let us consider the alternative. I will use the U.S. Supreme Court as an example, because it is most familiar, and because many state supreme courts in the interpretation of their own state constitutions or previous precedent have aspired to the same Olympian heights. In the eyes of many judges their role is not so much to follow the technicalities of the procedural or textual question before them; their job is to see that justice is done. As Alexander Bickel wrote of the Warren Court: More than once, and in some of its most important actions, the Warren Court got over doctrinal difficulties or issues of the allocation of competences among various institutions by asking what it viewed as a decisive practical question: If the Court did not take a certain action which was right and good, would other institutions do so, given political realities? The Warren Court took the greatest pride in cutting through legal technicalities, in piercing through procedure to substance. But legal technicalities are the stuff of law, and piercing through a particular substance to get to procedures suitable to many substances is in fact what the task of law most often is. Generations of lawyers have been trained to take the work of the Warren Court as normative, and it has profoundly influenced the way that judges regard their role on the court. A recent example from Washington illustrates the point. At issue was a claim by a number of same-sex couples that the state constitution guaranteed them the right to marry, and that the Defense of Marriage Act (DOMA) was therefore unconstitutional. After an unusually long delay between the oral argument of the case and the publication of its decision, the Washington Supreme Court narrowly upheld the constitutionality of the DOMA. Four of the nine justices joined in a stinging dissent that characterized the DOMA as lacking a rational basis because it was "motivated solely by animus toward homosexuals." The plurality took the unusual step of chastising the dissent in these words: "In assuming that everyone who voted for DOMA is a bigot, Justice Mary Fairhurst's dissent is not only wrong, it sadly oversteps the bounds of judicial review." In many courts there is a palpable tension between those who feel constrained by the limitations of the rule of law and those who feel it is their responsibility to conform the law (and other social institutions) to a more “elevated” vision for humanity. A last argument that has been made against judicial election is the “appearance” question: Even conceding that elections produce a judiciary that is as well qualified to do its work as one that results from merit selection, some would argue that the unseemly spectacle of judges campaigning for judicial office, and the prevalence of negative campaign techniques, will deal a mortal blow to the image of the judiciary (even the legal system as a whole) in the public mind. In response, one must again ask the comparative question: Is it worse than the alternative? The judiciary has suffered from fewer of the overt scandals that feature legislators with freezers full of cash or playing footsie in a public restroom. But the modern image of the judiciary, again thanks to the elevation of the Warren Court to canonical status, has morphed into the “bevy of Platonic guardians” that Judge Learned Hand feared. Humbling it may be for judges to kiss babies, dine on rubber chicken and endure negative campaign ads; but it might result in a greater degree of public appreciation for the function judges serve in our society. Besides, the elected judges that I have observed in Washington for the most part were once gregarious folk; they often miss the rough and tumble of practice and the relationships they formed. By requiring them to run for re-election, we encourage them to “hustle” once again. From what I have seen, most of them enjoy it. In summary, the rule of law is vulnerable not only because of the danger that a judge will be elected to pursue an environmentalist or libertarian or crime control agenda; it is vulnerable because in our current climate judges often feel they are accountable to no one but their own sense of what is right. One might argue that this operates as a healthy check on the majoritarian branches of government, but in fact it constitutes a dangerous departure from the rule of law. Judges who have been liberated from the concern about reelection are much more likely to believe themselves to be accountable to no one but their own consciences. To fulfill our expectation of obedience to the rule of law, judges need to recognize that it is not they who are the ultimate authority, but the set of political institutions and constitutive documents that the people created at the time the government was formed. Although election as a method of accountability is imperfect, it is preferable to the lack of accountability that can be found in many judicial quarters. To preserve the rule of law, judicial elections should be recognized as the worst way of picking judges – except for all the others. David DeWolf is a professor of law at Gonzaga Law School in Spokane, Wash. His teaching areas include torts, First Amendment and criminal law. Page: 1 of 1 pages for this article
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