When Justice Sandra Day O’Connor spoke to CU law students this April, she praised Colorado for being one of the few states in the country that has done away with electing state court judges, choosing instead to have them appointed by judicial nominating committees. Justice O’Conner’s belief that popular election of judges leads to a politicization of the judicial process, leading to less independent and impartial decision-making. With special interest groups donating large sums to campaigns and voters generally unaware of judge’s professional abilities, it is little wonder that the United States is one of only a handful of places that utilizes a political ticket for choosing worthy judges.
Justice O’Connor’s concerns are pointedly illustrated by the recent campaign for a Supreme Court in my home state of Wisconsin. In a campaign that cost $5 million, “a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist.” The idea that this process lends itself to healthy judiciary by making judges accountable to public opinion, is foolish because 1) the public control over the process is illusory: most voters aren’t making informed decisions, but instead relying on misleading or outright false advertisements like the above, designed and paid for by special interest groups and 2) insulating judges from often capricious public opinion allows them to maintain a distance and independence crucial to well-functioning judiciary.
The co-opting of the very worst aspects of our partisan political process has lead to predictable results. The University of Chicago “found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.”
If we as Americans decide that we will prize quantity over quality, as it appears we do, we will get the judiciary we deserve, and our society will be the worse for it.
Summer Intern 2008
JD Candidate, 2010
University of Colorado