Elected Judges, America's Shame

The New York Times

May 25, 2008
American Exception
Rendering Justice, With One Eye on Re-election
By ADAM LIPTAK

Last month, Wisconsin voters did something that is routine in the
United States but virtually unknown in the rest of the world: They
elected a judge.

The vote came after a bitter $5 million campaign in which a small-town
trial judge with thin credentials ran a television advertisement
falsely suggesting that the only black justice on the state Supreme
Court had helped free a black rapist. The challenger unseated the
justice with 51 percent of the vote, and will join the court in
August.

The election was unusually hard-fought, with caustic advertisements on
both sides, many from independent groups.

Contrast that distinctively American method of selecting judges with
the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de
Grand Instance, a district court, in Toulouse, France. He still
recalls the four-day written test he had to pass in 1984 to enter the
27-month training program at the École Nationale de la Magistrature,
the elite academy in Bordeaux that trains judges in France.

“It gives you nightmares for years afterwards,” Judge Baissus said of
the test, which is open to people who already have a law degree, and
the oral examinations that followed it. In some years, as few as 5
percent of the applicants survive. “You come out of this completely
shattered,” Judge Baissus said.

The question of how best to select judges has baffled lawyers and
political scientists for centuries, but in the United States most
states have made their choice in favor of popular election. The
tradition goes back to Jacksonian populism, and supporters say it has
the advantage of making judges accountable to the will of the people.
A judge who makes a series of unpopular decisions can be challenged in
an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having
elected judges is the way to do that,” said Sean Parnell, the
president of the Center for Competitive Politics, an advocacy group
that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and
39 states elect at least some of their judges, according to the
National Center for State Courts.

In the rest of the world, the usual selection methods emphasize
technical skill and insulate judges from the popular will, tilting in
the direction of independence. The most common methods of judicial
selection abroad are appointment by an executive branch official,
which is how federal judges in the United States are chosen, and a
sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial
selection say, there are only two nations that have judicial
elections, and then only in limited fashion. Smaller Swiss cantons
elect judges, and appointed justices on the Japanese Supreme Court
must sometimes face retention elections, though scholars there say
those elections are a formality.

“To the rest of the world,” Hans A. Linde, a justice of the Oregon
Supreme Court, since retired, said at a 1988 symposium on judicial
selection, “American adherence to judicial elections is as
incomprehensible as our rejection of the metric system.”

Sandra Day O’Connor, the former Supreme Court justice, has condemned
the practice of electing judges.

“No other nation in the world does that,” she said at a conference on
judicial independence at Fordham Law School in April, “because they
realize you’re not going to get fair and impartial judges that way.”

The new justice on the Wisconsin Supreme Court is Michael J. Gableman,
who has been the only judge on the Burnett County Circuit Court in
Siren, Wis., a job he got in 2002 when he was appointed to fill a
vacancy by Gov. Scott McCallum, a Republican.

The governor, who received two $1,250 campaign contributions from Mr.
Gableman, chose him over the two candidates proposed by his advisory
council on judicial selection. Judge Gableman, a graduate of Hamline
University School of Law in St. Paul, went on to be elected to the
circuit court position in 2003.

The much more rigorous French model, in which aspiring judges are
subjected to a battery of tests and years at a special school, has its
benefits, said Mitchel Lasser, a law professor at Cornell and the
author of “Judicial Deliberations: A Comparative Analysis of Judicial
Transparency and Legitimacy.”

“You have people who actually know what the hell they’re doing,”
Professor Lasser said. “They’ve spent years in school taking practical
and theoretical courses on how to be a judge. These are
professionals.”

“The rest of the world,” he added, “is stunned and amazed at what we
do, and vaguely aghast. They think the idea that judges with
absolutely no judge-specific educational training are running
political campaigns is both insane and characteristically American.”

But some American law professors and political scientists say their
counterparts abroad should not be so quick to dismiss judicial
elections.

“I’m not uncritical of the American system, and we obviously have
excesses in terms of politicization and the campaign finance system,”
said Prof. David M. O’Brien, a specialist in judicial politics at the
University of Virginia and an editor of “Judicial Independence in the
Age of Democracy: Critical Perspectives from Around the World.”

“But these other systems are also problematic,” Professor O’Brien
continued. “There’s greater transparency in the American system.” The
selection of appointed judges, he said, can be influenced by political
considerations and cronyism that are hidden from public view.

A working paper from the University of Chicago Law School last year
tried to quantify the relative quality of elected and appointed judges
in state high courts in the United States. It found that elected
judges wrote more opinions, while appointed judges wrote opinions of
higher quality.

“A simple explanation for our results,” wrote the paper’s authors —
Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that
electoral judgeships attract and reward politically savvy people,
while appointed judgeships attract more professionally able people.
However, the politically savvy people might give the public what it
wants — adequate rather than great opinions, in greater quantity.”

Herbert M. Kritzer, who was until recently a professor of law and
political science at the University of Wisconsin, said judicial
elections had deep roots in the state and the nation.

“It’s a remnant of the populist Jacksonian image of public office,” he
said. “We’re crazy about elections. The number of different offices we
elect is enormous.”

There is reason to think, though, that the idea of popular control of
the government associated with President Andrew Jackson is an illusion
when it comes to judges. Some political scientists say voters do not
have anything near enough information to make sensible choices, in
part because most judicial races rarely receive news coverage. When
voters do have information, these experts say, it is often from
sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a
professor of political science at Carleton College in Minnesota. “When
you vote with no information, you get the illusion of control. The
overwhelming norm is no to low information.”

Still, judges often alter their behavior as elections approach. A
study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found
that “all judges, even the most punitive, increase their sentences as
re-election nears,” resulting in some 2,700 years of additional prison
time, or 6 percent of total prison time, in aggravated assault, rape
and robbery sentences over a 10-year period.

In common law countries, judges are generally appointed by executive
branch officials, though lately judicial commissions made up of
lawyers and lay people are taking a larger role in the initial
selection of candidates. Scotland adopted that method in 2002, and
England and Wales in 2006.

Alan Paterson, a Scottish law professor who serves on the Judicial
Appointments Board for Scotland, said his country’s system was
transparent and worked well, though he acknowledged that the idea
behind judicial elections was attractive.

“Part of me likes it,” he said. “It follows from the separation of
powers. But in practical terms, it’s very difficult. They have to
raise a lot of money.”

“The theory is a nice theory,” he said. “The practice of it is
unworkable. We’re not going to do it.”

In some nations, of course, the judiciary is neither independent nor
accountable to the public.

“Take a country like Vietnam,” Professor O’Brien said. “Those poor
judges are controlled by party officials even at the trial level.
That’s even worse than we have in Pennsylvania, Ohio and Texas, where
the cost of judicial campaigns has just escalated over the last couple
of decades.”

Judge Gableman did not respond to phone messages seeking comment. In
answer to a question about his qualifications in an online forum on
The Milwaukee Journal Sentinel’s Web site, he acknowledged that he had
no appellate court experience but said he had argued a case,
concerning zoning, before the state Supreme Court.

In the recent election, Judge Gableman’s campaign ran a television
advertisement juxtaposing the images of his opponent, Justice Louis B.
Butler Jr., in judicial robes, with a photograph of Ruben Lee
Mitchell, who had raped an 11-year-old girl. Both the judge and the
rapist are black.

“Butler found a loophole,” the advertisement said. “Mitchell went on
to molest another child. Can Wisconsin families feel safe with Louis
Butler on the Supreme Court?”

Justice Butler had represented Mr. Mitchell as a lawyer 20 years
before and had persuaded two appeals courts that his rape trial had
been flawed. But the state Supreme Court ruled that the error was
harmless, and it did not release the defendant, as the advertisement
implied. Instead, Mr. Mitchell served out his full term and only then
went on to commit another crime.

In an interview, Justice Butler — a graduate of the University of
Wisconsin law school who served for 12 years as a judge in Milwaukee
courts — said the past few months had tested his commitment to
elections.

“My position historically has been that there is something to be said
for the public to be selecting people who are going to be making
decisions about their futures,” Justice Butler said.

“But people ought to be looking at judges’ ability to analyze and
interpret the law, their legal training, their experience level and,
most importantly, their impartiality,” he continued. “They should not
be making decisions based on ads filled with lies, deception,
falsehood and race-baiting. The system is broken, and that robs the
public of their right to be informed.”

Judge Baissus, the French judge, said his nation had once considered
electing its judiciary.

“It’s an argument that was largely debated after the French
revolution,” he said. “It was thought not to be a good idea. People
seeking re-election would not be independent. They are indeed close to
the electorate, but sometimes uncomfortably so.”