In Defense of Judicial Elections by Chris W. Bonneau and Melinda Gann Hall (2009. Routledge, ISBN 978-0-415-99133-9)

As a District Court Judge in my “other life”, I know this to be true: Outside of academia, the judiciary, and lawyers, few “ordinary” citizens understand or appreciate that there is an ongoing dialogue taking place in the American legal community regarding whether or not state court judges should stand for office in contested, political-party-endorsed elections. That having been said, after reading Bonneau and Hall’s work (research often cited by opponents of the various reforms being proposed for judicial elections across the nation) there remains one central question upon which the authors and I disagree:

Should judges be subject to party-endorsed, competitive elections?

The authors’ response to that question, as contained in their 181 page tome, is a resounding “yes”. But, even after having read and considered their research and arguments, I, for one, remain unconvinced that judges should be subject to political contests in the same fashion as other “politicians”. And this disagreement, one that is fundamental between the authors and myself, is based upon another question:

Is the position of judge a position which should be subject to the same rigorous give and take seen in other political elections?

Again, the authors answer “yes”. The research contained in the book, a look at contested state supreme court (and some lower appellate state court) elections from 1999 to 2004 is the authors’ attempt to prove their point: That only in contested, party-label popular elections are judges held accountable and public interest in the office of judge maintained. The authors decry the notion that nonpartisan judicial elections or retention elections can replace contested, party-label judicial contests in any meaningful way. It is the main premise of the book that, to galvanize public interest in the judiciary (and who is on the bench) the only way to prevent voter drop off (from the more popular races such as president and governor) in judicial contests is to ensure a meaningful comparison of judicial candidates. And, according to the authors, the only way to accomplish such a goal is to go all in: Have contested, party-endorsed races at all levels of the judiciary.

My own personal take on the question: “Are judges different?” is that, “yes”, judges occupy a far different sphere of influence in the political world than do other public officials. We are not (particularly at the trial court level) policy makers: We are policy implementers at the micro level, on a case by case, fact by fact basis. The authors’ primary premise that judges, in the role of judging, are political creatures and should be subject to party-driven electoral politics, in my view, misses one very important point: The Founding Fathers of this country vehemently disagreed with that notion. In the federal system, judges are appointed for life. It is true (as argued by the authors) that the federal judicial appointment process has become more and more politicized. But the authors’ reliance upon the increasingly contentious nature of Senate confirmation hearings as support for their position that all judges, even appointed federal judges, are political creatures (and should be subject to voter scrutiny based upon political ideology) misses the mark, in my view.

In addition, the book contains numerous references to the research methodology relied upon by the authors as being based upon “scientifically verified” facts. Really. I understand that social science and statistics can be used to make a point: But do such statistics and conclusions constitute “science” as most of us understand that term? I think not.

The book (despite having a copyright date of 2009) relies upon statistics from 1999-2004. Republican Party v. White was decided in June of 2002. It is significant to my understanding of the authors’ arguments in favor of contested, politically-motivated, party-endorsed judicial contests that at best, the authors are relying upon a year and a half of post-White information upon which to base their conclusions. While there are references in the book to more recent judicial races (such as the Butler defeat in Wisconsin) there are no statistics regarding spending, the tone of ads, party involvement or the like after 2004 utilized by the authors in forming their conclusion that contested, political-party-driven judicial races are, in essence “better”.

Finally, if one follows the logic and ultimate premise of the authors, that the political will of the majority should prevail on the difficult legal issues of our time, what then can be said about United States Supreme Court decisions sustaining the rights of minorities (such as Brown and a host of similar decisions)?

Imagine if, instead of being appointed for life, the justices of the U.S. Supreme Court were elected by popular vote. Do the authors of the book believe that, in the face of the attack on Pearl Harbor in 1941, popularly-elected Supreme Court Justices would have ruled the internment of Japanese Americans unconstitutional as the U.S. Supreme Court ultimately did?

It seems to me that Bonneau and Hall have attempted to advance a political position by reciting outdated statistics. They seek to give their views credence by labeling their opinions “scientifically verified.” Bottom line: In Defense of Judicial Elections failed to convince me of the authors’ main premise: That our system of government is better off if judges act more like legislators when it comes to obtaining and retaining their jobs.

2 stars out of 5.

 

 

 

 

 

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