Judicial selection: does electing judges work?

Does electing judges work in the USA?

Last week the Divisional Court gave judgment in the case of R (Miller) -V- Secretary of State for Exiting the European Union, otherwise known as the Brexit Case. The decision of the court was that the law requires Parliament to trigger the notification of the UK’s intention to leave the EU using Article 50.

Obviously, those who campaigned on the basis that we should leave the EU to hand sovereignty back to the UK Parliament are most upset about the decision of the court that it is for the UK Parliament to make important decisions like this one. Many of the same people who are super keen on Brexit and who either don’t understand or choose to ignore what the case was about and what the court said have been up in arms about it calling for changes to how judges are appointed. In particular Daniel Hannan, Conservative MEP, who confusingly seemed to call for elected judges but then told me on Twitter he was in favour of “open confirmation hearings”, which I presume is something similar to the US Senates role in approving a Presidential appointment to the US Supreme Court.

So, does the system of electing judges work “pretty well in the United States” as Mr Hannan claims?

So far as I can tell, only the USA elects judges directly by popular vote. In Japan, supreme court judges are subject to a referendum to remove them from office at the first general election following their appointment and then every 10 years. In Switzerland, Federal Judges and their deputies are elected by the Federal Assembly rather than by direct popular vote of the electorate. Interestingly, anybody who is eligible to vote in a general election is eligible to be voted in as a judge but in practice the body responsible for nominating candidates chooses not to nominate those with no legal qualifications, which I’m sure is a relief for the Swiss people.

In the UK, we have the Judicial Appointments Committee which considers applicants and appoints judges, or at least makes recommendations to the Prime Minister. People wishing to become judges can apply to the JAC, as they would for any other job, and candidates are then subject to interviews and testing prior to selections being made. Vacancies for judicial posts are known as “competitions” and are extremely competitive with candidates often spending huge amounts of money to attend training course in preparation for their application. The system is a little different in the Supreme Court where a special panel exists to decide on the new justice. The panel is made up of a member of the Supreme Court, a non-lawyer and a member of the JAC as well as others. The Lord Chancellor may give advice on the appointment and there is a requirement that the new judge should have held high judicial office before (although, as with Lord Sumption that rule can be waived where a candidate shows exceptional ability at the Bar). The process of appointing a judge is open to scrutiny in that the public can see who is making the decision and the criteria for choosing the successful candidate but they are not privy to the reasoning. In that way, it’s no different to the appointment of anybody else who applies for a job.

To my mind, electing judges is a terrible idea from which no good can ever come. If, for example, a judge is coming up for re-election and has a difficult case before him. Is he going to decide it taking into account what he thinks voters want or what is correct in law? Sandra Day O’Connor, a former US Supreme Court Justice, noted that “no other nation in the world [elects their judges] because they realise you’re not going to get fair and impartial judges that way.” Worth saying, that in the USA, the Supreme Court Justices are not elected.

In June 2013, the American Constitution Society for Law and Policy (ACS) published it’s study, “Justice At Risk”, which looked at 2,345 business cases that come before state supreme courts in the USA across all 50 states between 2010 and 2012. They also looked at campaign contributions donated to elected judges and found that,

“The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.”

It’s clear in my mind that if judges are influenced by their financial backers then that is not a recipe for justice being done. But, financial backing isn’t the only way judges can be influenced. In 2010, Iowa’s supreme court struck down a ban on gay marriage, leading to three members of the court being targeted at the next election by those opposed to gay marriage with half a million dollars spent to oust them from the court… and it worked with all three judges losing their seats.

Then there was the case of Judge Steven Kirkland who found that attorney George Fleming had overcharged clients by $13M and ordered him to pay the money back! Unsurprisingly, Mr Fleming appealed but he also recruited challengers to run against Judge Kirkland and funnelled tens of thousands of dollars into their campaign funds. Judge Kirkland lost the election. He then decided to contest another election to become a judge again. This time, Mr Fleming lavished $90,000 on Kirkland’s opponent.

If you were a judge faced with a difficult case and you know that if you go one way you might be attacked in such a way that you lose your job, I don’t believe you can honestly say that wouldn’t play on your mind as you reached your decision.

There’s another side to this as well. The use of mudslinging tactics is becoming more prevalent in US judicial elections and no doubt would do here as well. Judge Kirkland was criticised because he had previous convictions for drink driving at a time when he was an alcoholic. Relevant? Maybe, but the convictions and drink problems were both over thirty years old and I’ve seen no suggestion they had any impact on his ability to carry out his job as a judge. Other attacks on judges have included:

1.       Justice Robin Hudson faced a campaign claiming she “side with child predators”;

2.       Bridget McCormack was accused of helping to free a terrorist;

3.       David Prosser was accused of protecting sex offenders not children;

4.       Judge Prosser was also accused of calling another judge a “total bitch”;

5.       Justice Janet Stumbo was on the receiving end of a campaign video that used mug shots of two black criminals set against pictures of (seemingly irrelevant to the ad) pregnant white women to suggest that Stumbo sides with criminals – or possibly that she sides with black criminal against white victims, you decide that one;

Ignore for a moment whether the claims made in these attacks are true or false and think instead of the impression they give people in the street of the judiciary. When judges are throwing insults at each other and undermining other’s court decisions the only possible outcome is that the average person on the street will see judges as just another type of politician and their respect for judicial office holders will decline and with it will go confidence in the justice system.

Once judges are seen as just another breed of politician who are influenced by their financial backers and cowed by fear of their opponents then people who need the law are less likely to go to law because they see that judges are not there to help them. This is bad for justice and bad for the rights of individuals.

If judges are not only perceived as being unduly influenced by money and re-election, but actually are influenced by those things then it is inevitable that they will start making decisions to appease their backers and campaign groups who might fight against their re-election. In a fight between a wealthy employer known to be politically active and a wronged employee, who might the judge be inclined to side with I wonder?

Contrary to the claim of Mr Hannan, I think there is ample evidence that not only do elected judges not work well in the USA but that they can be detrimental to justice. Before I move on, I leave the last word on the topic of elected judges to Justice Don Willet, an elected judge of the Texas supreme court:

“I understand 100% the suspicion that donations drive decisions. That skepticism siphons public confidence, and that's toxic to the idea of an impartial, independent judiciary… I'd be shocked if people didn't look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system.”

One final note on reform, because I am not opposed to reform of the judiciary. In fact, I have long thought that our system of choosing judges from barristers (and while solicitors can apply to be a judge, most judges are appointed from the ranks of the Bar). The skills needed to argue a case and be a good judge are not one and the same thing. Of course, there are overlaps, but being a great advocate does not mean you will be a fantastic judge. If our system were to be reformed, I would support a move to the French system of professional judges who actually go into their careers wanting to be judges and are trained to judge rather than being trained to talk.