The Worst Way of Selecting Judges—Except all the Others That Have Been Tried

This Essay critiques the arguments leveled at judicial elections. For each criticism--which I have discovered through a reasonably thorough review of cases and law review commentary--I assess the degree to which the criticism is valid, and also the degree to which other judicial-selection methods fall prey to the same criticism. I argue that the flaws of judicial elections, though often considerable, are shared in large part by alternative selection systems. Beyond, however, being simply equivalent in malignity to other selection methods, elections have--or, rather, may have, depending on the content of judicial election campaigns--one advantage over other systems that instigated the nineteenth century move to judicial elections and ensures their popularity withthe everyday citizenry: the opportunity they provide for a free people to choose those officials who exercise policy-making authority. Democracy may indeed be the worst method of choosing judges . . . except for all the other ones