Friday, July 8, 2011

John Waters on Judges in the Irish Times

Unfortunately there's much vitriol that obstructs the substance. I'll restrict myself to one of his points: What we need is a referendum on the way judges are appointed, offering voters the option of a system whereby judicial offices become subject to appointment by public vote.
This would represent a first step on the way to a judicial system genuinely representative of the people, and potentially independent of the other branches of government and the State.

Many US states have elections for state judgeships and the informed opinion here is that it has produced bad results. Massive election campaign expenditures, garish TV advertisements featuring unseemly personal attacks, judges acting like politicians, good candidates refusing to run and the wrong sorts seeking office, and candidates pandering to the lowest common denominator are all largely acknowledged to be the unwelcome byproducts of this exceptional attempt at public accountability.

The average voter faces enormous informational barriers when evaluating candidates for judicial office, even where a candidate has a track record of serving as a judge. The odds of an elected system producing good judges on a consistent basis are very low whereas the chances of the wrong sorts winning elections are probably higher given the skills required to turn these informational barriers into votes. Political skills are likely to trump substance and what you get is another version of the legislature, with judicial powers.

There is plenty of research in the U.S. on elected judiciaries suggesting that the benefits are illusory. One study in Pennsylvania - where judges must face a retention election every 10 years - "[e]xamin[ed] over 22,000 Pennsylvania trial court sentences for aggravated assault, rape, and robbery convictions in the 1990s, ... confirm[ed] that sentences for these crimes are significantly longer the closer the sentencing judge is to standing for reelection." Another study by professors Choi, Gulati and Posner (Eric) shows that "[a]ppointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent."