I suspect that’s, in part, because their campaigns all preach some variant of “I’m for justice and fairness.” OK, duh. Who’s going to grab a microphone and say, “I’m for injustice and unfairness?”
Unlike other political candidates, judicial candidates are bound by a different set of ethics, preventing them from making campaign promises. The rules that govern their campaigns do allow them to state their personal views, but warn that if they do so, they risk having to disqualify themselves from presiding over a related case. That means the more voters know about a judicial candidate’s personal opinions about an issue important to them, the less likely those candidates are to be able to actually rule on the issue.
For those thinking: Surely, our system can’t be that bad? Oh yes, it is.
As a result, most of what we get from candidates is inanities. I recently watched a 2021 judicial candidates forum, and it felt like I was listening to summer camp counselor interviews. The moderators asked questions like “tell me about yourself” and “which of your experiences in life most prepared you?” It was a joke.
Because of this — and other reasons like cronyism and lack of qualifications, which I’ll get to later — it doesn’t make sense for judges to be elected.
It’d be better for the point of entry to the judiciary to be within the bounds of a multipart recommendation, appointment, and retention process. I’ll explain.
A better way to select judges
We need to professionalize our courts with a different system. Missouri, which elected judges until the 1940s, laid the template for judicial reform when they passed their “Nonpartisan Selection of Judges Court Plan,” also called the Missouri Plan.
Under the thumb of Democratic Party boss Tom Pendergast and St. Louis Ward bosses, Missouri courts were rife with political influence in the 1930s. According to Missouri Courts, “the public became increasingly dissatisfied with the increasing role of politics in judicial selection and judicial decision-making. Judges were plagued by outside influences due to the political aspects of the election process, and dockets were congested due to time the judges spent campaigning.”
To fix this, voters passed the Missouri Plan by referendum. Here’s how it works:
- A nonpartisan judicial commission reviews applications and interviews candidates. The commission then compiles a list of qualified candidates and sends it to the Governor.
- The Governor appoints a judge from the commission’s list.
- After the judge has served one year of their term, voters decide in a retention election whether they should remain judges.
This plan initially applied only to higher courts. But it was so popular that counties in Missouri began using the plan for lower court selections, and now 30 other states have a version they use to fill their courts.
Is this perfect? No. But it’s a whole lot better than what we currently have. For those thinking: Surely, our system can’t be that bad? Oh yes, it is. Let’s start with the lack of qualification requirements.
Judges as technocrats
Judges serve a technical role, especially trial and appellate judges who rarely decide new legal questions — or cases of first impression, as lawyers call them. Their business is almost exclusively upholding procedural rules and precedents from higher courts. This calls for a niche understanding of legal procedure and precedent.
But the only qualification for judicial candidates — besides being a member of the Bar — is a $100 filing fee and 1,000 petition signatures. Those last two — the fee and petitions — are the same qualifications for active, policymaking elected offices like City Council At-Large, Sheriff, Register of Wills, City Commissioner, District Attorney, and Mayor. But, for a technical role, shouldn’t the qualifications have something to do with technical competency?
To their credit, the Philadelphia and Pennsylvania Bar Associations publish recommendations on which judicial candidates are qualified. (For those unfamiliar, the Bar Associations label judicial candidates as highly recommended, recommended, or not recommended). But candidates frequently get elected regardless of the Bar’s recommendations.
Alexander Hamilton put it best when he wrote, “The complete independence of the courts of justice is peculiarly essential.”
In 2013, four “not recommended” judges were elected: Judges Henry Lewandowski, Jacquelyn Frazier Lyde, Sierra Street, and Joseph J. O’Neill. In 2017, three not recommended judges were elected: Judges Deborah Cianfrani, Shanese Johnson, and Mark B. Cohen, a longtime former State Representative dethroned after billing taxpayers some $30,000 a year for books.
Aside from Bar recommendations, voters may rely on party endorsements as proof of judicial competence. But the Party acts independently of the legal community’s guidance. Prime example: The three not recommended judges elected in 2017 were all Party-backed candidates.
And, unlike Bar recommendations, Democratic and Republican Party endorsements are testaments of Party loyalty, not competency. This is the sort of cronyism the Founders were wary of. Alexander Hamilton put it best when he wrote, “The complete independence of the courts of justice is peculiarly essential.” How independent can one be if they got their seat as a reward for bending over for their Party?
Potential for partisan influences in decisions
And you’re kidding yourself if you think judges become divorced from politics after they’re sworn in.
For more ambitious judges, their first election is only the beginning. Of the 13 candidates running for higher courts this year, eight are current lower court judges. These are people looking for promotions. But direct engagement with political parties is essential for these promotions, which entrenches party cronyism in the judiciary — a branch of government intended to be insulated from politics.
This is what Missouri dealt with in the 1930s before they rose to the occasion and gutted their system. With a balance of expert and populous input, the Missouri Plan permits a more thorough inspection of judicial candidates. Under this plan, judicial candidates have been scrutinized multifold before getting their foot even close to the door.
There is no guarantee that this will put the most competent, politics-free judges in every courtroom in the Commonwealth. But fine-tuning the point of entry would make incompetency a lesser threat. And if a bad one slips through the cracks or the public dislikes them, the public can vote to remove them from the court in a retention election.
I’d have more faith in a process where voters, legal experts, and the Governor collaboratively choose judges than our current system where parties select cronies for an uneducated populace — in the grips of arbitrary voting patterns — to choose from.
Jemille Q. Duncan is a public policy professional, columnist, and Gates Scholar at Swarthmore College.
MORE IDEAS WE SHOULD STEALPhoto by Towfiqu barbhuiya