Living with Judicial Elections

29 Pages Posted: 17 Apr 2018

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: December 1, 2017

Abstract

Individually and collectively lawyers overwhelmingly endorse the appointment of judges as the best way to ensure the independence and impartiality of the judiciary. But even with the all-out effort of the ABA and other lawyer groups to convince states to adopt an appointive system, there has been virtually no movement in that direction for the last two decades. And the explanation for the bar’s lack of success is obvious—three-quarters of Americans support the popular election of judges. Proponents of the appointment process refuse to acknowledge that members of the public have legitimate reasons for favoring an elected judiciary. Some people simply prefer the ability to directly choose members of all three branches of government. Others have specific, personal reasons for their preference. For example, four of the last seven Illinois governors have been sent to prison. Understandably, Illinois residents are skittish about placing their judiciary in the hands of the state’s top executive officer. Proponents of judicial appointments must also finally admit that “merit selection” is a political process. That fact was driven home by former Rhode Island Governor Lincoln Chafee’s admission that several of his bills were held hostage by state legislative leaders until he appointed a former senate president to a life-time judicial post. Resistance to Chafee’s initiatives disappeared after he relented and made the appointment.

Intuition and ideology rather than empiricism drive the judicial selection debate. And even if a compelling, evidence-based argument existed for choosing one system over another, the public does not appear ready to cede the selection process to lawyer-heavy nominating commissions and governors. For the foreseeable future, elected judges will remain the norm. Thus, the organized bar must devote more time and effort to develop and implement strategies that reduce the appearance and reality of political influence, improve the odds of electing impartial judges, and increase the likelihood that judges who demonstrate partiality will be removed from office.

The most frequently suggested strategies to combat the impartiality-impairing effects of judicial elections include:

(1) promoting non-partisan judicial elections;

(2) controlling campaign contributions and spending; and

(3) requiring judges to recuse themselves from contributors’ cases.

Unfortunately, these strategies have proven either too controversial to implement, ineffective, and in some cases counterproductive. Instead, the legal profession needs to embed the value of impartiality into the judicial election and retention process. This can be accomplished through:

(1) pre-judicial education,

(2) amending codes of judicial conduct to require that judicial candidates emphasize the overarching duty of impartiality in their campaigns,

(3) imposing more severe discipline on judges who demonstrate partiality, and

(4) requiring judges to explain denials of motions to disqualify based on campaign contributions.

Keywords: judicial elections, judicial campaigns, judicial ethics, judicial discipline

JEL Classification: K4

Suggested Citation

McKoski, Ray, Living with Judicial Elections (December 1, 2017). University of Arkansas at Little Rock Law Review, Vol. 39, No. 4, 2017 (Symposium Issue), Available at SSRN: https://ssrn.com/abstract=3157714

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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