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Judicial elections: a dissenting view

Update: Readers and bloggers have had many reactions, which I've summarized in a follow-up here.

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As readers of this space may have noticed, some of our friends in the business community have lately been taking up as one of their big causes the direct voter election of state court judges. They argue in a populist vein that the common people ought to exert control over the judiciary and that methods such as gubernatorial appointment or "Missouri Plan" merit-screening panels are too open to influence behind the scenes from bar insiders, politicians, and trial lawyers. They also appear to believe that litigation outcomes will be fairer and more predictable from a business person's point of view when judges hold their offices by election than when they are appointed. The Wall Street Journal has published a series of editorials and other articles assailing the Missouri plan and talking up direct election.

I must say that I find it really odd that business groups have gone off on this kick. Unlike them, I am not at all convinced that electioneering and noisy public campaigns make a good way of selecting judges. In fact, I think there's plenty of evidence that those practices contribute to some of the most serious problems of the state courts, and specifically to some of the worst problems facing business in those courts. In light of all that, crusading against appointive and for elective methods of judge-picking would appear -- at best -- a badly misplaced outlet for reform energy.

The evils of asking impartial judges to beat the bushes for votes and contributions are so obvious and so (nearly) universally conceded that I won't dwell on them at any length here. (You can find plenty of examples on the website of the Justice at Stake campaign and its blog, Gavel Grab.) Judges seeking election or re-election face constant pressure to "commit" to stances favored by one or another voting bloc. They are asked to stand by while their supporters, strategists and handlers run campaigns on simplistic themes ("tough on crime") or demagogically rail at cases in which the adversary has taken a position favorable to some unpopular party, whatever its technical legal merit. Worst of all, big-bucks campaigns put judges in a position of having to raise money from lawyers who practice in their courts and from parties interested in the outcomes of litigation.

Federal judges, who of course are exclusively selected by appointment rather than election, are widely seen as upholding a general standard of quality well above that of their state brethren. Business defendants in particular overwhelmingly seek to have their cases heard in federal court rather than state. Again, business litigants widely regard the judicial process of most other advanced democracies -- in Western Europe, Japan, Canada -- as more predictable and rational than that of state courts in the U.S. And again, in those other advanced democracies, elected judgeships are virtually unknown, being widely seen as part and parcel of the distinctive "American disease" of law.

When you get down to comparisons between particular states, the sorts of outrages of which business has long complained -- runaway juries, outlandish punitive damages, judges who practice "home cooking" favorable to local chums -- have long been concentrated in the same states where partisan judicial election is the order of the day. Most of the fabled nightmare jurisdictions -- south Texas, Alabama, the Bronx -- were and are places where judges run for election. Meanwhile, Delaware, known as the state most favored by business in litigation, had and has appointive judgeships. Alex Tabarrok and Eric Helland have found strong evidence that where judges are elected on partisan ballots, trials result in higher verdicts against business defendants and specifically against out-of-state business defendants.

Examples of particular states could be multiplied at length. In New York, while the runaway-jury tales of the Bronx and Brooklyn arise in courtrooms presided over by locally elected judges, the judges on the state's highest court -- who have often stepped in to correct those excesses -- owe their positions to gubernatorial appointment. Mississippi, site of this year's judicial-bribery scandals? Another election state.

The Show-Me Institute of Missouri bills itself as "Advancing Liberty With Responsibility By Promoting Market Solutions for Missouri Public Policy". In May, it published a study by Joshua Hall of Beloit College and Russell Sobel of West Virginia University on the much-attacked "Missouri Plan", long the model "merit selection" scheme. Among other conclusions, Hall and Sobel noted that the states that did best on the U.S. Chamber of Commerce's 50-state rankings of state legal systems tend to be merit selection states. Hall and Sobel conclude that while tinkering with the details of Missouri's existing plan might well be worth considering, replacing it wholesale with a different system would run a serious risk of undercutting judicial quality in the state.

So what explains the otherwise baffling admiration of some business advocates for an institutional arrangement they once rightly distrusted? A major factor, surely, is that in the last decade or two a coalition led by the U.S. Chamber of Commerce has enjoyed great success in pouring campaign contributions into high court races, in the process transforming some of the state high courts formerly most hostile to business defendants, such as Alabama, Texas, and Michigan, into courts highly skeptical of many of the excesses of litigation. I'm hardly criticizing this trend: I personally admire many of the justices who now sit on these state courts, and as a general matter I think their philosophy tends to be much better and sounder than that of the trial-lawyer-friendly jurists they replaced. But it is a mistake to observe a tide that has been sweeping out to sea, and conclude that it will continue to sweep out indefinitely. It is hard to deny that the substantive improvement in some of these courts has been bought at a cost of politicization and polarization which inevitably invites the other side to respond in kind when its day comes.

Finally, I suspect that some of the impulse to rally in favor of a flawed system derives from an ornery feeling that, well, if they're against it -- they being the established Bar, liberals and good-government types -- we'll be for it. Thus a WSJ piece rather darkly notes that George Soros is throwing around money in favor of merit selection of judges. But even George Soros (who hardly invented the merit selection idea) isn't guaranteed to be wrong every time. There might be a few issues, just by chance, where he turns out to be right.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.