Impartiality and the judiciary are frequently considered synonymous. Even outside of the U.S., the Supreme Court, judges on state supreme courts and other higher-level positions enjoy lengthy terms, a good degree of freedom from political pressure, and the promise of being appointed based upon their merits rather than party affiliation.
Or at least they should. An actual look at how judges are appointed to state supreme courts throughout the country reveals an unsettling truth: many of these judges are elected.
To most citizens the idea of electing judges seems reasonable. After all, elections are the basis of a strong democracy. However, there is always an exception to the rule, and the judiciary is just that exception.
Take the recent Supreme Court elections in Iowa as a prime example. While most of the nation was focused on election results of the U.S. House and Senate, three Iowa Justices lost their positions at the bench because of their controversial ruling to allow gay marriage in the state. While in Iowa justices are initially appointed by the Governor from a pool of applicants chosen by special commissions, they are also subjected to reconfirmation elections every few years.
These elections are only supposed remove justices for gross misconduct, but, as elections are wont to do, they tend to get more political than originally thought. Interest groups, some even from out of the state, poured money into campaigns against the justices. The campaign worked, and now the Iowa Supreme Court lacks three justices simply because of political whims of the public.
The problem with these elections is fundamental. Judges are ultimately not accountable to the opinions of the people, but rather to the laws of the United States. An independent judiciary is supposed to interpret the laws, not act as a second legislative branch that is subject to public opinion. A startling 23 states hold elections for their supreme courts, while another 17 use a modified form such as a retention election after the initial appointment. That’s a total of 40 states where interest groups, business leaders, and political parties can hold a great deal of influence on the judicial branch.
Those who are concerned, however, have at least one influential figure on their side. Former Supreme Court Justice Sandra Day O’Connor has stepped up as the champion of reforming judicial elections. For several years now she has passionately criticized election of judges, frequently writing editorials, appearing on talk shows, and speaking at events about the issue. Her crusade is admirable, but the lack of attention given to it is troublesome.
In the typical fashion of the modern media, the most recent story involving the retired Justice featured little of her campaign to replace judicial elections with nomination processes, but focused instead on robo-calls that awoke potential Nevadan voters in the middle of the night. While a call at one in the morning is certainly inconvenient, the criticism leveled at Justice O’Connor for her involvement was both misplaced and ignorant of the more important issues.
If states do not consider reforming their appointment processes, the results will be far worse, but less immediately noticeable than an annoying call in the middle of the night. Judges at the state level, where citizens are far more likely to be involved in a case than the U.S. Supreme Court, will continue to bow to political pressure and interest groups. An independent judiciary is critical for a strong democracy, but it simply cannot exist when judicial elections are the norm.
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