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SHOULD JUDGES BE ELECTED?

By: Veronica Henderson, Attorney

On June 5, 2018, an election will take place, and registered voters will be asked to select who should be the next Governor of the State of California. In addition to this important political position, voters will be asked to select non-political professionals, specifically judges in courts across the state, including two judicial seats in Imperial County. This brings up the question as to why judges are elected, rather than appointed or selected by professionals who have knowledge about the legal profession.

After all, electing a judge is very different from electing a legislator or governor, because judges must be impartial. While politicians can make campaign promises, and the people can vote them out if they do not deliver on those promises, a judicial candidate cannot promise to always rule a certain way, because to do so would be inconsistent with the role of a judge. Judges must apply the law to the particular facts of the case and rule accordingly, and every case is factually unique. Judges are considered to be at the pinnacle of the legal profession, having the knowledge, skills, and abilities to make important decisions impacting the lives of many people, every day.

Historically, judicial elections came about to correct for the corruption and partisanship of judicial appointments. At first, the plan to create a more independent judiciary through popular elections worked. The first generation of elected judges in the early 19th century exercised the power of judicial review and accountability far more than their appointed predecessors did. Over the years, however, historians have noted that many elected judges have succumbed to corruption, partisanship, and economic pressures. Spending money on campaign signs and other advertisements has overshadowed proof of qualifications.

One study has revealed that merit selection, which involves vetting by a panel of professionals and executive appointment to a first term, followed by retention elections, has yielded the most judicial independence. This implies that judges will profess allegiance to the rule of law, rather than bending to popular and political pressures. Moreover, the wealthiest candidate won’t necessarily win the election. Although this process may also be adversely affected by excessive campaign spending, it is less likely to be influenced by money than the direct election process.

Justice in America is delivered first and foremost through the courts. Ensuring that the most qualified individuals occupy judicial seats is paramount to freedom and democracy.

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