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December 11, 2009

Would elimination of elected judges be beneficial for criminal law and sentencing jurisprudence?

The question in the title of this post is prompted by this new piece in The National Law Journal, which is headlined "O'Connor Helps Launch New Initiative Against Judicial Elections." Here are excerpts from the piece:

Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.

On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.

The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.

O'Connor said the initiative would provide "information and useful support" to states considering a move away from judicial elections. "No other nation in the world elects their judges in popular elections," O'Connor said. "We are alone in that regard."

Calling the initiative a "think-do tank," Kourlis said the initiative was about moving beyond public education efforts. "This is all about, OK, in this particular state, what do we need to do to build a majority," said Kourlis, who is executive director of the institute.

Because I have a bit of a Jacksonian streak in me, I tend not to be quick to assail elected judges.  But I know many folks in the state defense bar point to elected judiciaries as a source of great mischief for the development of criminal justice jurisprudence.  And I suspect that state prosecutors might be among those most eager to see judicial elections retained.  Thus, I would like to hear what commentors think about Justice O'Connor campaign to get rid of judicial campaigns.

December 11, 2009 at 11:09 AM | Permalink


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from the perspective of a practitioner, I believe the popular election of judges to obtain or retain their seats is the biggest obstacle to impartial justice that we confront.

bruce cunningham

Posted by: bruce cunningham | Dec 11, 2009 12:13:32 PM

I agree bruce. I think that judges should be held accountable to the electorate but that doesn't mean directly accountable.

I think the whole issue of "elected" judges is really just a straw man for the fundamental lack of respect most judges show for the duly elected bodies. So I get the impulse. But I disagree with it's application here.

Posted by: Daniel | Dec 11, 2009 2:23:42 PM

This issue presents a true dilemma. The electorate is uninformed/uninterested in judicial elections and the winners are usually voted in for all the wrong reasons. On the other hand, I am loathe to allow a lawyer dominated committee ahve a free hand in advancing their agenda behind closed doors either. Any nominating committee should include participants from all walks of life. No more than half should be lawyers.

Posted by: mjs | Dec 11, 2009 4:31:21 PM

mjs, as a practitioner, I am much more concerned about how a judge keeps his job than how he gets his job. There will always be politics involved in any selection of a judge in the first place. So, I'm not too concerned about that and once a judge is on the bench the appointer or elector may get surprised. e.g. Earl Warren and David Souter.

On the other hand, no judge should lose their job for making a legally correct, but politically unpopular, decision. But it happens all the time. Just ask former Tennessee Sup Ct justicePenny White.


Posted by: bruce cunningham | Dec 11, 2009 5:30:42 PM

I think that it is Iowa that has a system where a committee appoints judges then the public can vote to retain them or not. This seems like a good way to go.

Posted by: KRG def attny | Dec 11, 2009 6:00:44 PM

mjs --

A balanced and thoughtful perspective, as usual.

Although the issue is scarcely free from doubt, I lean toward allowing judicial elections. Such elections have the drawbacks you note. Still, the electorate pays their salaries, and, even more important, has to live under the law as they declare it to be. For good or ill (mostly ill in my view), judges now are part of the governance of the country. On the theory that government should have the consent of the governed, the people should have the primary say in who wields judicial power over them.

Posted by: Bill Otis | Dec 11, 2009 7:05:58 PM

Bill: You are right to note the burgeoning and troubling role of the courts in our governance.

Posted by: mjs | Dec 11, 2009 8:05:59 PM

This is a horrible, lawyer hierarchy bitch running her weasel language con.

"...the initiative would provide "information and useful support" to states considering a move away from judicial elections." What is the name of the female weasel, it's not, bitch. Just looked it up. It is, bitch. When in heat, they grow bigger and bully the male.

She wants to end the small amount of accountability of the lawyer hierarchy that remains. Isn't this the feminist bitch on wheels that repeatedly signed the death warrants of a million viable babies?

Not a direct action group of crime victims, nor of lawyers. A direct action group of judges should hunt her down, and bring street justice to this horrible person, just beat her ass. To deter.

Posted by: Supremacy Claus | Dec 11, 2009 9:31:02 PM

I like retention elections for judges, I believe they strike a proper balance between judicial independence and judicial over site. With a retention election the voter has to choose whether some unknown replacement would be better than the seated judge, which should form at least somewhat of a basis favoring retention in most cases.

I also believe that the federal system's life tenure with forced removal only upon impeachment is too judge friendly. I would prefer some form of federal retention election system to mandatory retirement after X years.

Posted by: Soronel Haetir | Dec 11, 2009 10:48:30 PM

It's interesting because if there is one thing it seems most commentators on this blog share is a distate for the intrusive nature of the courts in our lives. I agree. But I don't blame the judges and I don't blame the lawyers for that.

I blame us. The voters. We allowed this to happen and we can change it.

Posted by: Daniel | Dec 12, 2009 12:26:09 AM

Daniel: Try it. The system is rigged airtight to favor the criminal cult enterprise 99% control of the government.

Only physical remedies remains. In our Perestroyka, a Lincoln class executive will have to send federal marshals, arrest the lot, try them, and execute them on the spot. Once gone from government, lawyer control amendments should be enacted to prevent the reinfiltration of government by this criminal cult enterprise. A million and half people control the lives of the nation, are running down this country, and failing in every goal of every law subjects. These are self-dealing incompetents, as bad for us as the Communist party was for Russia.

Posted by: Supremacy Claus | Dec 12, 2009 9:31:53 AM


Regardless of the proper technical term for a female weasel (see above), I think the tone of the comments is crossing the line when commenters are referring to a Supreme Court Justice as a "bitch." If we can't express strong opinions without personal attacks (which should be the goal), can we at least keep our personal attacks free of offensive and/or sexist language?

I would certainly defend in court a person's right to call SDO a bitch without fear of government reprisal. But that doesn't mean I want to listen to it, or that I think you should provide a platform for it.


Posted by: Observer | Dec 14, 2009 12:45:55 PM

Ditto to Observer's comment. Doug, I'm a huge fan of your blog, but isn't it time to consider shutting the troll down? I normally skip right over his comments, but I went back and read this one due to Observer's comment. If the troll's comments were as blatantly racist or anti-semitic as this one is sexist, would you continue to provide a platform? When will you consider the line to have been crossed, assuming there is any line?

Posted by: female reader | Dec 14, 2009 3:11:33 PM

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