Practice Management

The elected judiciary

By Dan Hull

The popular election of state judges is a national illness. We Americans are in denial about it.

If he were alive today, Alexis de Tocqueville might very well "like" George W. Bush--as his exemplary American, warts and all. But he would be appalled to learn that 31 of our states still have some form of popular election of judges. The young French author who toured America in 1831 noted that some American states already were in the process of reducing the power and independence of the judiciary through certain "innovations", and it disturbed him. One was the state legislatures' ability to recall judges. Another:

Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.

from Democracy in America, Vol. I, Part 2, Ch. 8 (Tocqueville's emphasis in some translations).

This blog has made no secret of the fact that we believe:

(a) judges should never be elected (ever), (b) elected state judges pose dangers to clients which do business in more than one state or nation, (c) the notion that any dispute would be heard and decided by an "elected official" who has received election campaign contributions from some of the lawyers and clients before him is a national embarrassment (especially since these conflicts are rarely disclosed), (d) popularly elected state judges is an institution inconsistent with the fact that business is now done nationally and internationally, with "non-local" parties appearing frequently before American state courts, and (e) justice would be better served if all of the "affected" states reformed their judicial systems to select judges for life on the basis of merit, coupled with an impeachment safeguard.

In the short-term, and as a practical matter, any good business lawyer should bend over backwards to keep global, multi-jurisdictional clients out of state courts, and before federal courts.

The popular election of state judges is a national illness. We Americans are in denial about it. And the rub, and a reason for pessimism: constitutionally, only the States can do anything about it.

Full post as published by What About Clients? on April 28, 2008 (boomark / email).