Why Judicial Elections Stink

Those who are concerned about judicial independence and accountability in the United States quite rightly focus their attention on state judicial election campaigns. It is there that the most sustained and successful efforts to threaten judicial tenure in response to isolated, unpopular judicial decisions have occurred; and it is there that escalating campaign spending has created a public perception that judges are influenced by the contributions they receive. Attempts to address these problems have been undermined by four political realities that the author refers to as the Axiom of 80 : Eighty percent of the public favors electing their judges; eighty percent of the electorate does not vote in judicial races; eighty percent is unable to identify the candidates for judicial office, and eighty percent believes that when judges are elected, they are subject to influence from the campaign contributors who made the judges\u27 election possible. Conceding the inevitability of judicial elections in light of entrenched public support, court reformers have relegated themselves to proposing incremental reforms aimed at lessening the detrimental effects of judicial elections. As valuable as these efforts are in the short term, the author argues that they will ultimately fail because judicial elections are inherently unable to preserve judicial independence or promote judicial accountability. The author thus proposes a six point long-term strategy aimed at overcoming popular support for judicial elections, gradually phasing elections out of existence, and replacing them with an appointive model of judicial selection akin to that employed in the federal system