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Are judicial elections bad for business?

Yes, says the Manhattan Institute's Walter Olson in a blog post. Olson, who has been deftly criticizing our society's litigiousness for years at overlawyered.com, argues against what he sees as a trend in the business community toward support for direct election of state court judges. The argument has been that merit-screening panels and gubernatorial appointment systems are prone to capture by interests hostile to business, like trial lawyers. If judges are elected, the thinking goes, litigation outcomes will be fairer and more predictable. Olson responds:

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.

...

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. . . . 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.

If you're interested in these issues, it's worth reading Olson's entire post. Having lived and practiced for years in Texas, where state court judges are elected on partisan ballots, I'm sympathetic to Olson's preference for some form of merit selection system (perhaps tempered by retention elections). I'm inclined to think the quality of the judiciary — in terms of expertise, understanding of the law, levels of corruption, and temperament — is on average better when judges are appointed and don't face the myriad pressures of democratic politics.

An objection to Olson's argument could be that in theory, at least, there's no reason one system rather than another will systematically favor or disfavor any particular set of interests, business or otherwise. If the enemy is trial lawyers, for example, it's possible for them to exert inordinate influence over either a merit system or an election system; the first through bar connections and donations to gubernatorial campaigns, and the latter through judicial campaign contributions. Any special-interest group will have the motivation, and some will have the means, to help produce results they favor given either selection system. On the one hand, elections might excite populist sentiments and demagoguery against the wealthy and big business. On the other hand, business interests have been politically very successful inveighing against what they deride as greedy trial lawyers and frivolous lawsuits. But Olson makes a good argument and provides some evidence that, on the whole, business interests are better served by a merit system where the judges themselves are more likely to understand the law and try to apply it in a principled way.

Kazinski:
I favor a system of appointed judges, with 4 year terms to be renewed by the voters. In other words elections to throw them out, but not to put them in.
7.17.2008 1:26pm
Bob from Ohio (mail):
Democracy sure sucks. Better to have the elite appoint our rulers.
7.17.2008 1:28pm
Anderson (mail):
The problem, Bob, is that being a judge is a profession, unlike being a legislator or a governor. You need to have a law degree and know how to use it. I'm in Mississippi, and there are certainly a few judges on the bench who shouldn't be there.

Electing judges makes about as much sense as electing doctors and accountants.

Legislative appointments are open to politics -- what isn't? -- but it at least tends to lead to getting *qualified* people on the bench, and probably makes it more difficult for people on the extreme left or right to become judges.
7.17.2008 1:34pm
Hans Bader (mail):
Judicial elections are slightly bad for business, but slightly good for crime victims.

They don't have as much effect as some people claim on judicial outcomes, although they have some.
7.17.2008 1:35pm
Happyshooter:
I have seen both methods.

With elections, the judge owes his contributors and slants decisions their way. In Michigan, the Supreme Court is a partisan race, so they also owe the party loyalty.

However, in an election any group is free to buy their judge by matching or bidding more donations.

The alternative is the appointment system, which really stinks. Not only does the appointee have to pledge to the governor, but usually to the special interests which make up the pre-screening committees. In that system, there is no chance for outsiders to buy the loyalty away. The judge's decisions are forever bought one way.
7.17.2008 1:45pm
Kanchou (www):
Well, in my county here in California, the county Coroner/Medical examiner used to be an elected position until recently. As a voter, it's really hard to decide who is better qualified. I mean, does bedside manner count?

I do think the current title of Sheriff-Corner is much cooler.
7.17.2008 1:47pm
Happyshooter:
They don't have as much effect as some people claim on judicial outcomes, although they have some.

I disagree. In Michigan, the state supreme court elections for the last 10 years has been the scene of BIG money election fights. The trial lawyers and unions have thrown in big bucks on the dem judges side, and the Chamber and insurance cos on the GOP judges side.

The GOP has won each cycle after media buys as large, on both sides, as the governors race. The result has been decisions in every case that favor businessmen in general and insurers in particular, and a judical rewriting of some fairly basic Michigan law.
7.17.2008 1:50pm
BRM:
Businessmen truly prefer litigating in Canada over litigating in state court?
7.17.2008 1:55pm
Cornellian (mail):
If you want judges to apply the law, regardless of public sentiment, then you can't have an elected judiciary.
7.17.2008 1:57pm
Kanchou (www):
Just to clarified. My earlier post about elected coroners was to address Anderson's comment about election for Doctors and Accountants. The coroners were often medical doctors.
7.17.2008 1:58pm
mga (mail):
I practice law in Missouri (appointed) and Illinois (elected). There is no question that the appointment system produces fairer judges. And the 2004 race for the Illinois Supreme Court had both candidates down in the gutter, each accusing the other of promoting pedophilia.
7.17.2008 2:00pm
Stormy Dragon (mail) (www):
The real problem with electing judges is that they're usually barred from talking about how they'd rule on particular types of cases, so the voter has no basis for evaluating what sort of judge a particular candidate is likely to become.
7.17.2008 2:06pm
Wahoowa:
I favor a discretionary appointment system (like the federal one), perhaps with retention elections every 5 years or so. So-called "merit selection" is just as bad as elections.

For those unfamiliar, in merit selection there is a board that submits a list of 3-5 names to the governor and the governor is restrained to those names. Most midwestern and some western states have it and it's just a way for liberal lawyers to keep conservatives off the bench. At least judicial elections, for all their faults, have the advantage of relative transparency.
7.17.2008 2:17pm
Scrivener:
I don't see election of judges as fundamentally better or worse than appointment of judges through some form of cooperation of the governor and the legislature.

But retention elections are a terrible idea: when an unpopular party stands in front of a judge running for a re-election, the conflict of interests issues are serious enough to question whether due process of law can be provided by the judge.

So, if you elect judges, elect them for long terms and make them ineligible for a second term.
7.17.2008 2:40pm
30yearProf:
It can't be an "unopposed" retention election so long as the public has no information base from which to gauge the judge's performance and no one who does know the facts has any incentive to speak out. That's why 99% get retained, not because they are soooooo gooooood. No voter knows unless the Judge has been on the front page for using sex toys behind the bench during trials (true incident). Ordinary incompetence, arrogance, etc. is never enough to root out a sitting judge. IMHO, it should be.

In an "opposed" elections (after White) someone, the other candidate, has an incentive to find out the facts about Judge Smith and exposed them with adequate publicity. They can even speak about judicial philosophy. The electors should be be provided with as much information and persuasion as US Senators get before they consent to lifetime appointments. Only in opposed elections with free speech is that possible (nor guaranteed but possible).

FWIW, the single biggest improvement would be to PAY JUDGES COMPARABLE SALARIES to lawyers of the LEVEL OF COMPETENCE we'd like to have on the bench. If the pay is just that of a senior prosecutor, guess what? You'll get applicants from that level of the profession. Retiring onto the Bench so to speak.
7.17.2008 2:42pm
DanG:
Hmmm, elected judges are better because they are better for "business." How about we get rid of judges altogether. Anytime a business is sued, we just leave it up to the business to decide what to do. The business can decide to compensate or not. And if they feel really bad about what they did, they can decide to pay punitive damages. That would be better for business than elected judges.
7.17.2008 2:50pm
Joe Bingham (mail):
DanG, I can't think of an interpretation of your comment that doesn't mean you didn't pay attention to the reasoning--or even the point--of the original post. If there is one, can you fill me in?
7.17.2008 2:56pm
ejo:
illinois has both elected circuit judges and appointed associate judges-I can't say that I have found one or the other to be more competent and both require political connections to get on the bench. I also can't say that illinois is regarded as the zenith of ethical politics or jurisprudence.
7.17.2008 3:04pm
Dave N (mail):
I have seen very qualified individuals get passed over by merit panels because there is an agenda to keep certain types (prosecutors) off the bench or to promote a favored candidate.

I became completely disillusioned about "merits appointments" several years ago when the scuttlebut became that a particular attorney was favored for the appointment to the trial court here.

One of the other applicants was my former supervisor, an expert on federal habeas corpus and criminal law, who had argued three times before the United States Supreme Court, numerous times in front of the Ninth Circuit, and who had been lead prosecutor on several death penalty jury trials.

He was not a finalist--though the favored candidate was, as was a 33 year-old female attorney with no trial experience.

The fix was in. The selection panel obviously did not want to submit three qualified people--they wanted their pal to be the only qualified choice.

I should add that another of my former supervisor's protoges was then the Governor's Chief of Staff, but because this outstanding attorney was not a finalist, the Governor legally could not even consider him for appointment.
7.17.2008 3:10pm
Kirk:
Cornellian,

I have 2 words to say to you: Rose Bird.
7.17.2008 3:17pm
Adam J:
I agree with Olson that appointment is better then election for judges, however I think the superior quality of federal judges has alot more to do with the prestigiousness of the position over that of a state judge then the manner in which they are appointed.
7.17.2008 3:19pm
DanG:
Joe Bingham: not trying to make fun of the original post.
7.17.2008 3:22pm
hattio1:
Wahoowa says;

I favor a discretionary appointment system (like the federal one), perhaps with retention elections every 5 years or so. So-called "merit selection" is just as bad as elections.

For those unfamiliar, in merit selection there is a board that submits a list of 3-5 names to the governor and the governor is restrained to those names. Most midwestern and some western states have it and it's just a way for liberal lawyers to keep conservatives off the bench. At least judicial elections, for all their faults, have the advantage of relative transparency.


I live and practice in a merit appointment system, and that has not been my experience. As far as I can tell, it's a way to keep criminal defense lawyers, public defenders, PI lawyers, etc. off the bench, and make sure only former prosecutors, insurance defense lawyers etc get on the bench. I don't find the liberal/conservative divide to be the most important, but generally I think those in the first category tend to be slightly more liberal, and those in the second to be slightly more conservative.
7.17.2008 3:39pm
Lior:
My uninformed intuition is that elected judges would be a terrible proposition for criminal defendants. "He got away on a technicality" would sway the voters more than "in reality, it was fairly clear the guy was guilty, but it was not clear beyond a reasonable doubt". Is this the way things work in practicle?
7.17.2008 4:12pm
byomtov (mail):
Delaware, known as the state most favored by business in litigation, had and has appointive judgeships.

My understanding is that Delaware law is particularly favorable to corporations. Is the preference of business to litigate there a result of appointive judgeships, or of the state's laws?

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.

The excesses of plaintiffs maybe. It's always interesting to me how those who complain about excesses never seem to mention that defendants often behave outrageously as well, and corporate defendants in fact have some substantial built-in advantages.
7.17.2008 4:19pm
Crackmonkeyjr (www):
Here's a proposal:

Trial Court judges are picked by lottery, anyone who can practice law in the state is entitled to enter the lottery. You get to stay a trial court judge until you are reversed on appeal a certain number of times. The governor can appoint any lower court judge who has been on the bench and not been kicked off for being reversed to a higher court. Higher court justices serve for life. In a state like New York, where there is an intermediate appellate court, these judges will also serve until their opinion has been reversed a certain number of times.

This takes almost all of the politics out of picking trial court judges. It further gives trial court judges an incentive to do what they are supposed to do - apply the law. It further ensures that higher court justices are picked from people who at least have a strong understanding of how the law should be applied.
7.17.2008 4:21pm
MarkField (mail):
I guess I don't see the point of this article. I suppose he's trying to appeal to self-interest, but it strikes me as unpersuasive at best since nobody's likely to admit they're acting for such crass motives.

The only real question should be "which system is best for the nation [state] as a whole". If asked, I'm sure those he's trying to persuade would say that's exactly what they're doing. His article, therefore, amounts to implicitly accusing people of concealing their true motives for personal gain, and then explaining to them why they don't actually know their own best interests.
7.17.2008 4:25pm
pete (mail) (www):
The main problem with electing judges is that it is much harder for voters to figure out how to wisely vote than for any other elected position I can think of. And democracy only works well when you can have an informed electorate.

This is especially true in places like Texas where there are some ballots with dozens of judicial races on them. I really have no idea who to vote for most of the time and the judical races are the only ones I ever leave blank if I can not find a good voters guide.

Retention votes for appointed judges seem like a good compromise.
7.17.2008 4:28pm
Anderson (mail):
In that system, there is no chance for outsiders to buy the loyalty away. The judge's decisions are forever bought one way.

Once you're appointed, you're looking for re-appointment to the *next* governor. (May be the same one if re-elected, but may not.) So I don't think you're necessarily so beholden.

--As for coroners, I thought about that when I was writing my comment, but we only let elected doctors deal with dead people. Tells ya something.
7.17.2008 4:34pm
arbitraryaardvark (mail) (www):
The real problem with electing judges is that they're usually barred from talking about how they'd rule on particular types of cases, so the voter has no basis for evaluating what sort of judge a particular candidate is likely to become. This was true when I last ran for judge in 2000, but is less true now after MN GOP v White. Expect to see more high dollar judicial races with the candidates being sold on TV like soap. (99.44% pure!) I personally think this is a good thing. Currently, rational ignorance is still the norm, and it's hard to inform voters enough to make the outcome not random, but the potential is there.
7.17.2008 4:34pm
PaddyL (mail):
In Washington State elected judges has been the norm since statehood. During my 50 years of practice I have witnessed the decline of judicial competence and fairness to a level below mediocre. As for appointment, governors have used the process to reward hacks for loyalty and political support. Once appointed, it is rather easy for incumbents to be re-elected.

I doubt that in todays political environment elected officials can be trusted to appoint judges based upon the intelligence, qualifications and integrity rather than other factors. The other limitation upon obtaining good judges is inadequate compensation.
7.17.2008 4:39pm
TomH (mail):
At least here in New York, voters know little and care less about who their judges are or how they decide an any particular case. Once a year or so, the NYC tabloids run a story about "bad" judges, but (at least in NYC) since they are democrats, they get elected to a second 14 year term by a 99% to 1% margin (really, this is a fact) regardless of the news stories. The real races ar ein the primaries, which are controlled heavily influenced by the party bosses (google Brooklyn and Clarence Norman).

I follow this stuff, being politically involved in the area, and I do not recall ever seeing a story about a non-incumbent candidate.

Even outside the city, judges are generally elected along party lines. With a shift in successful candidacies frm Republican to Democrat in the northern suburbds in the past ten years as the demographics have shifted.

It is so bad in New York, that a Federal District COurt held that the entire election process was Constitutionally deficient. Candidates, as noted above, are selected by party insiders (like me, to be fair, but I am not as rich as Clrence Norman) and because of the need for a party apparatus to get enough petition signatures to make it onto the ballot after nomination, no person not approved by the party can get on the ballot.

Elections indeed.

This is getting long, but -

My solution, for each open seat, send questionnaires to every attorney, judge, law professor and legislator. Ask each to rank, or 5-10 people as favored a seat, and the person with the most "votes" is appointed for life or a long term, subject to recall by popular vote eavery couple years.

Objective (less politcal or partisan) selection is based on the wide base of the selection process, and the process has expertise, based upon the background of the persons polled.

I know the system, as described, has holes, but those can be worked out.
7.17.2008 4:41pm
TomH (mail):
Sorry about the typos etc. Trying to fit in a comment between phone calls.
7.17.2008 4:45pm
CJColucci:
Just seconding some of what Tom H says about the system in New York. A while back, I went to a bar association panel discussion on becoming a judge. Several judges from my home county talked about the rigors of campaigning. I wondered what campaigns they were talking about. I had never seen a judicial campaign. I had voted for every judge on the panel, but until that day I couldn't have picked any of them out of a line-up. One had a very WASPy name, and I wondered how he got elected in the Bronx. In fact, he's a Puerto Rican native. My practice isn't Bronx-centered, and I know enough about only three or four judges to have an opinion come election day, and two of them are ineligible to run again.
7.17.2008 4:51pm
The Unbeliever:
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.
Wait, what? Have they not been paying attention to all the recent anti-business and anti-competition decisions handed down by European courts?

I suppose the obvious rejoinder is that anti-business is not incompatible with "predictable and rational", but it strikes me as strange to suggest US businesses would rather try litigation under certain foreign courts rather than US courts.
7.17.2008 4:58pm
Kazinski:
I don't doubt the overall quality of appointed judges over elected judges, but occasionally you get a judge by election that turns out to be an absolute jewel that would never have been appointed by either party. In Washington we've got Richard Sanders, who was elected in a special election in 1995. From his bio:

His special interest is the Washington State Constitution and often quotes his favorite passage: "[G]overnments . . . are established to protect and maintain individual rights."
7.17.2008 5:32pm
Stop Lembke (mail) (www):
Citing his attack on the state's judiciary and values out of touch with Missourians, the Committee to Stop Lembke was created to oppose the election of Jim Lembke to the State Senate. Rep. Jim Lembke has proposed eliminating the Missouri Nonpartisan Court Plan, which has protected Missouri courts for nearly seven decades by requiring the selection of judges based on merit rather than on political affiliation. Go here to learn more about this campaign - www.StopLembke.com
7.17.2008 5:39pm
Bob from Ohio (mail):
We as lawyers have complete monopoly control over an entire branch of government. It is totally stocked with our kind.

We owe it to the people to let them have some say in those who judge them.

The legal establishment hates elections in Ohio. Fortunately, the voters disagree and constantly beat back "merit" selection.
7.17.2008 5:54pm
Nathan_M (mail):

Wait, what? Have they not been paying attention to all the recent anti-business and anti-competition decisions handed down by European courts?

I suppose the obvious rejoinder is that anti-business is not incompatible with "predictable and rational", but it strikes me as strange to suggest US businesses would rather try litigation under certain foreign courts rather than US courts.

I think Olson's comment is about civil litigation where, to some extent, companies can choose the jurisdiction it will be conducted under. There's no reason a company can't prefer American anti-trust law to English anti-trust law while simultaneously thinking that English judges are of higher quality than their American counterparts.

I don't know about contractual disputes, which are more likely to go to arbitration anyway, but for most international tort cases the defendant will fight to keep it out of the American courts, especially certain state courts such as Texas.
7.17.2008 6:01pm
Ted S. (mail) (www):
Tom H.

Up here in the Catskills, we usually get cross-endorsements in the judicial races.

In one such case, back in 1998, I was sick and tired of seeing the cross-endorsements, so I cast write-in votes.

In 2000, there were still cross-endorsements, so I went to cast write-in votes again -- and found that my votes from 1998 were still there!

I called the county board of elections, but nobody ever returned my call. So I get to tell everybody I was a victim of electoral fraud. :-)
7.17.2008 6:21pm
ronnie dobbs (mail):
Elected judges are good on criminal law and bad on civil law. I.e., no one wants to run as being soft-on-crime, while it can be very useful to be seen as sympathetic to poor plaintiffs in civil cases.

Appointed judges tend to be the reverse--their "sophistication" and insulation from the whims of voters allows them to be softer on criminal defendants and yet more rational in civil cases.

Frankly, I'm not a big fan of either, though I suppose I'd rather have runaway civil claims if it means that the violent criminals get locked up more regularly and for longer periods.
7.17.2008 6:59pm
mike z (mail):
Not all judges in Delaware are appointed. I am not an expert on this subject, but I believe that the judges in the Court of Chancery are elected, and an awful lot of out of state corporation-related cases go to that court.
7.17.2008 7:04pm
Crackmonkeyjr (www):
Ronnie Dobbs:

I have to take issue with your definitions of "good" and "bad" for judges. A judge who is "hard" or "soft" on crime or sympathetic to poor plaintiffs or anyone else, is a bad judge. What you are describing is a judge who is playing favorites and that isn't much of a judge. What you want is a judge who applies the law correctly regardless of the outcome.
7.17.2008 7:05pm
Jim Copland (www):
I have an extensive explication of my thoughts here:

I'd like to expand a bit more on the thoughts I briefly shared with Walter over email, and explicate my position more fully. In short: I agree that elections aren't good ways to pick judges, but let's be very wary of the push to replace them with "merit selection."

To begin with, I agree strongly with Walter and Michael Krauss that in a vacuum -- if we were adopting a judicial system from scratch -- we'd never want to have the election of judges. The courts' function is interpreting the rule of law and safeguarding against oppression by the other branches of government, which control the sword and the purse. Those other branches are accountable to the people -- itself a critical safeguard of liberty -- but the passions of the moment might well undo the Rule of Law upon which liberty depends; and the majority of course might oppress the minority. The argument is laid out clearly by Alexander Hamilton in Federalist 78 . . . .
7.17.2008 7:44pm
hattio1:
Ronnie Dobbs says

Elected judges are good on criminal law and bad on civil law. I.e., no one wants to run as being soft-on-crime, while it can be very useful to be seen as sympathetic to poor plaintiffs in civil cases.


Ronnie,
Like CrackmonkeyJr., I have to disagree with your assessment of "good" and "bad" judges. If they are ignoring the law to be "hard" on violent criminals, they are bad judges. I have a feeling what you mean is that they properly suppress and dismiss when police misconduct calls for that under the law. All I can say is that I live and practice in a state with merit selections, and it is STILL like pulling teeth to get judges to enforce the exclusionary rule.
7.17.2008 8:37pm
elim:
to be clear, judges, whatever the stripe, might be worse because lawyers (the talent pool) is more mediocre. in addition, whether appointed or elected, state court judges are generally less bright than federal judges for reasons of prestige and, don't forget, the fact there are a lot fewer of the latter. how many federal judges are there in the country compared to how many there are in the Circuit Court of Cook County? even with the prestige, there are still some doozies on the elite federal bench.
7.17.2008 11:33pm