Adam Liptak provides a fairly good compare and contrast piece today between how people get robes in the United States versus how judges are selected elsewhere. One might think that Americans elect judges because of some deep-seated theoretical paradigm to achieve a higher and better justice. Not exactly.
“It’s a remnant of the populist Jacksonian image of public office,” [Herbert M. Kritzer, who was until recently a professor of law and political science at the University of Wisconsin] said. “We’re crazy about elections. The number of different offices we elect is enormous.”
Going back to an anti-elitist time in American history, when faith in the collective judgment of the people was elevated above all else in American politics, the idea of electing judges, together with dog-catcher, became popular. There was no particular belief that elections were well-suited for identifying and placing people in the position of sitting in judgment, but rather a generic idea that small-d democracy was good, and whatever decision the people made, regardless of their actual ability to make it, was better than any other option.
The off-shoot of this default choice of electing judges has its issues.
“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”
There are many who frankly have no problem with this. They argue that judges should be responsive to public opinion. After all, why should our government ignore the will of the people?
The name for this is the tyranny of the majority, where the law changes with the wind and transitory popular notions dictate right and wrong. For lawyers, this is a nightmare. We believe that judges must be independent of the will of the people, so that they can make difficult decision without fear of public rebuke. But that’s what lawyers think, and who cares what lawyers think?
But how do they do it elsewhere?
Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.
“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.
In other words, judges are required to have hard qualifications to fill the robes before they can even be considered. Imagine that. Qualifications!
“You have people who actually know what the hell they’re doing,” Professor Lasser said. “They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”
“The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”
But this goes to qualifying individuals to serve as judges, not to who those individuals should be in the first place. The French system is no more immune from cronyism than ours, and arguably ours is more transparent since we know and, to a small extent, have a say in who gets the vote. Granted, our choices are limited to nominees from political bosses, and we make our decisions almost entirely uninformed, reducing votes to jokes when cast without basis.
While this article offers no solution, though it clearly favors the European approach, consensus is clear that of all the possible ways to pick a judge, popular election is the worst and most seriously flawed.
Update: I’ve received some questions about why I didn’t post more about other aspects of the article. The article also superficially discusses how judges running for election change their behavior and play to the crowd. This portion of the articles was obvious and therefore unworthy of much comment.
If you wonder why judges pandering to the public to get their vote gives rise to problems, then you’ve likely been away from the country for a very long time. Liptak’s treatment of this lacks any insight, and it was therefore not worthy of discussion in the context of the article.
One good line from the article, that goes to my post about voter information yesterday, is worth repeating:
“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”
But we already knew that, right Anne?
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The European approach sounds so much better than ours. Unfortunately, it won’t happen here. I practiced in Texas and know that they have attempted for years to make judicial races non-partisan. Now I live in Missouri and you know how judges are selected. One big good-ole boy network that seems even more political than an election system. Tested merit? ludicrous.
Tested merit sounds like a pretty good idea, at least to qualify a pool of people from which to select judges. On the other hand, I’ve been reading stories about how the Chicago Police Department screwed up the last Lieutenant’s exam (it will eventually end up in the courts) so judicial exams might not be as simple as they sound.
Great food for thought. Unfortunately “merit selection” is this country has become politically coopted. You have to be connected to be appointed. Look at the current quality of federal judges where there is no strong senator to protect the courts. When was the last federal judge with the stature of Judge Weinstein appointed? I have to say, I like the idea of independent judicial training before one can become a judge – but would it be limited in this country to how to avoid being reversed? And how not to stick your neck out to uphold the 4th amendment?
Have not had time to read A.L.this week, but did he mention the very different role judges play in non-US countries?
Jury trials are almost non-existent elsewhere, even in common law countries (see recent “reforms” in the UK, e.g.). Administrative duties, too, such as managing caseflow, are a new concept to these judges.
In most countries, a judge is simply another cog in a paper-pushing machine, requiring exactly the sort of skills a written test can measure.
I hope he limited his discussion to western Europe. Eastern Europe, as one might imagine, is a whole ‘nother thing, as is much of the rest of the world.
There was sooo much more he could have done with this piece, but defaulted from the informative (how others deal with it) to the trivial, taking obvious pot-shots at judges running for office. Not that I don’t enjoy the latter as well, but he was into a very interesting idea which, with a little research and effort, could have been developed into a much more informative piece.
Instead, he came back around to the same, and still neglected to inform as to whether this was because judges are pandering fools or because we put them in the position of having to be pandering fools to be elected.
Yes, indeedy!