Convention Edition 2003 Home   Newsletters

Fall 2003

Winter 2003

President's Message (Maile Bay)
To All Leaguers
Proposed Positions for Adoption through Concurrence
On Election of Judges
Elections Office: The Newest & Final (Jean Aoki)
LWV-US Files Amicus Brief
Judicial Independence: Educating Citizens to Protect Equal Justice... (Nancy Connors)
LWV-US Ed Fund Grant
Ugly Side of Redistricting (Jean Aoki)
Practicum on the Hawaii Legislative Process (Grace Furukawa)

On Election of Judges

According to Uncertain Justice - Politics and America's Courts, a publication of the Constitution Project, 77% of all judges on courts of general jurisdiction and 53% of all appellate court judges in the states face contestable elections.

In some states, judges face elections in their initial selection, that is as challengers to incumbents or as candidates for open seats. In some, the initial selection is through merit systems, or simply by appointment by governors or legislatures, and retention elections are held when their terms expire. Most retention elections are not contested; voters merely vote yes or no on the question of whether a certain judge should be retained for another term. In some states, other candidates may run to replace the incumbents.

Attempts in many states to replace the election of judges with merit selection have failed because of the reluctance of voters to give up their "right" to select the judges. Yet, the election of judges is seen by many as a threat to judicial independence.

What are the challenges and problems associated with the election of judges? The following are some of the arguments for and against elections many of which are discussed in one of the Road Maps series, a publication of the American Bar Association. (Our comments and rebuttals are printed in italics.)

Arguments For the Election of Judges

Proponents say that judges should be accountable to the people much as our other elected officials are, and elections are a means of enforcing accountability.

Elected political leaders are meant to be the peoples' representatives and should consider our views before making their own informed policy decisions. Judges, on the other hand, are expected to be impartial and fair as they apply the law to the facts in the cases before them regardless of popular opinions.

In Hawaii's system of having the Judicial Selection Commission decide whether a judge or justice should be retained for another term, based partly on the evaluations of judges administered by the Judicial Performance Committee and comments invited from the public, there could be a good deal of accountability if properly implemented.

Many minority groups and women's groups argue that they have a better chance of being selected to judgeships through elections than through appointments.

The following is part of a paragraph from ABA's Road Maps series on Judicial Selection:

"The truth about which system provides greater benefits to women and minorities may depend greatly on the jurisdiction involved. In large urban areas with high minority populations, elections may put higher percentages of minorities on the bench. In statewide elections, however, or in areas with minimal minority voting power, merit selection may provide greater diversity. …"

Supporters of elections argue that even in the merit selection of judges through commissions, political influence is continued through the political appointments of the commissioners by governors and legislatures.

It is true that the selection of the appointive authorities will determine the degree off political influence in the selection of judges. In Hawaii where the governor appoints two members of the Judicial Selection Commission, the senate president and the house speaker appoint two each, the Chief Justice of the Supreme Court appoints one, and the Hawaii State Bar Association elects two of its members, some attempt was made to dilute that political influence. However, just about everyone concedes that you will never completely remove politics from the process; we can only strive to minimize it.

Arguments Against

Opponents contend that a great many voters go to the polls without meaningful information about the judicial candidates and depend on the judges' political affiliations in partisan elections, or allow public criticism of one unpopular ruling by a judge or unfair characterization of the judge's actions to sway them.

Participation of voters in judicial elections is generally very low.

Fundraising to finance the election campaigns presents a huge problem. Costs of judicial campaign: are escalating, and the majority of the contributors are lawyers, corporations, and others who appear before the court and have special interest in the decisions made by the judges. In a publication of the Center for Responsive Politics, we learn that in Michigan, $15 million was spent on three judicial races, which just a decade ago cost only $100,000 each. While these may be extreme cases, more and more races are costing close to or more than $1 million. In this atmosphere, can the courts maintain their impartiality or even the appearance of impartiality? How would you like to be a defendant in a case tried before a judge whose election campaign was heavily financed by the plaintiff(s) in this case?

Some states and cities have adopted partial or full public funding of judicial election campaigns and more are considering full public funding. This would remove one of the biggest problems of judicial elections.

Opponents of elections say that lawyers are reluctant to challenge a sitting judge in an election. They may lose in that election and have to bring a case before the judge at some future time.

The campaigns themselves can pose many problems, especially now with the U.S. Supreme Court ruling in June of 2002 in Republican Party v White striking down a Minnesota canon of judicial conduct that prohibited judicial candidates from announcing their views on disputed legal or political issues during election campaigns. Justice Kennedy wrote, "The political speech of candidates is at the heart of the First Amendment and direct restrictions on the contents of candidate speech are simply beyond the power of government to impose." How will this affect the impartiality and fairness of judges if they let their views be known on matters that may come before them in the future?

Beyond that, we have reams of reports of unfair and deceptive charges being hurled at opponents' records and characters, not only by candidates but also by independent special interest groups not subject to disclosure of donors and principal supporters. Judicial candidates can be attacked by these groups for their decisions on one case, with all kinds of baseless accusations distorting the truth. Would this affect their decisions on future similar cases?

With all the possibilities of ethical lapses in the heat of an election battle, how do judges maintain their credibility as impartial and fair arbiters of criminal and civil cases before them?

Convention Edition 2003 Home   Newsletters Winter 2003