Judge or politician?

Don't Fix Judicial Elections. End Them.

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Anyone who still thinks judicial elections are a good idea should head over to the National Journal for a detailed look at what's going on in North Carolina. It details the attack ads, direct interest-group involvement, partisanship and use of official time for fundraising -- in other words, how all the muck of regular election politics buries any illusion that North Carolina judges can be neutral arbiters of the law.

The thrust of the article, reported by James Oliphant, tends to blame money for the situation, specifically the Republican-backed repeal of public financing for North Carolina judicial elections. That's one way to look at it -- also see Norman Ornstein, who, like Oliphant, believes the campaign-finance system is tainting these elections in the U.S.

I don't think judges act like politicians because of the money. It's because anyone up for election is going to act like a politician. Yes, that can be partially prevented by removing money from elections; similarly, partisanship can be reduced by forbidding explicit party identification (judges run under party labels in some states; in others they don't). But all that does is to make it even more impossible for ordinary voters to make sensible decisions. Party labels and TV ads supply citizens with information. Without that, you don't have clean elections; you have sham elections.

Now, I have no issue with acknowledging that judges are political actors. And that they are going to have at least some partisan ties, however they are chosen. The general approach judges take toward the law is going to be subject to political influence from voters, parties or interest groups.

But this general influence works best in the case of judges when it's indirect -- that is, when it is exercised by governors who then appoint judges. Interest groups or activists who place a high priority on judicial philosophy or biases can get involved in trying to influence who gets elected governor. It's one thing to elect a pro-business (or pro-labor) governor who then appoints pro-business judges; it's quite another for business groups (or unions) to become the primary electoral constituency of those judges.

It isn't as if voters feel well-served by all those baffling judicial elections on the ballot. They are more likely to leave the voting booth feeling uninformed and unprepared and just plain inadequate. I can't prove this lowers voter participation and feelings of political efficacy over the long run, but I suspect it does.

The solution is to get rid of judicial elections. The federal system -- with the president making the appointments -- works just fine. There's no reason the states shouldn't let their governors do the same thing.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net