Judging, politics, sentencing and elections

Adam Liptak has this effective piece in today's New York Times headlined "Rendering Justice, With One Eye on Re-Election."  Here are some highlights that should especially interest sentencing fans:

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election.  The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people.  A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.  In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence.  The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals....

There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges.  Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage.  When voters do have information, these experts say, it is often from sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota.  “When you vote with no information, you get the illusion of control.  The overwhelming norm is no to low information.”

Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.

Since 2008 is an election year, the linked study perhaps ought to be foremost in the mind of state lawyers trying to figure out how quickly or slowly to move a case along.  In addition, as suggested in this Linda Greenhouse NY Times article about the lack of 5-4 rulings by the Supreme Court so far this Term, there is reason to speculate that appointed judges also are impacted by election cycles:

The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term.  “Of course, lots of things could explain this, but the pattern is pretty interesting,”  Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”