Electing Judges

The NYTimes has a good piece today on judicial elections, pointing out how odd American practice is compared to the rest of the world. 

Contrast th[e] distinctively American method of selecting judges
with the path to the bench of Jean-Marc Baissus, a judge on the
Tribunal de Grand Instance, a district court, in Toulouse, France. He
still recalls the four-day written test he had to pass in 1984 to enter
the 27-month training program at the École Nationale de la
Magistrature, the elite academy in Bordeaux that trains judges in

“It gives you nightmares for years afterwards,” Judge
Baissus said of the test, which is open to people who already have a
law degree, and the oral examinations that followed it. In some years,
as few as 5 percent of the applicants survive.

My work on judicial elections shows that elected judges serve their constituents (see also Judge and Jury). In particular, when the defendant is an out-of-state corporation awards are much higher in states that use partisan elections to select their judges than in other states.  As one judge put it bluntly:

As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone’s else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me."

Richard Neely (1988), West Virginia Supreme Court of Appeals.


Nothing from Judge Neely about protecting white women from darkies and Jew peddlers?

Trust me, he started it. (I just wanted one of them Splenda packets he was stuffen into his pockets).

Surely the bigger problem is electing prosecutors, as the Duke lacrosse case showed.

When a fatally flawed but sensational case lands in your lap, a surefire steppingstone to a bigger political career as state attorney general or more, the sociopathic temptation to grandstand before the cameras and make yourself a household name is more than some can resist.

I am a non-lawyer but, as a foreigner, very much out-of-state. I think that if I was defending an important state court suit before an elected judge, I would be inclined to use your work to plead that the equal protection clause of the 14th. Amendment to the Constitution barred that judge and his elected colleagues from hearing the case.

If I was up on a sensational criminal case where there was an elected prosecutor, I would consider the same tactic; but would have to ask you to do a quick, pre-plea study on how out of state defendants fared before elected prosecutors.

The problem with the American criminal-justice system is that it is very efficient at producing criminals (..witness the world's highest prison population) -- but very poor at delivering justice.

The mere selection method of government judicial bureaucrats ("judges") is trivial to that fundamental problem of systemic corruption.

Politicization of the judiciary has been evident for decades. Most all judges are political animals (Democrats or Republicans) -- that's how they got their jobs, whether appointed or elected. Advancement to higher courts or other government positions requires 'cooperation' with politicians in power and the party leaders; boat-rockers don't go far.

"The American legal system is "flexible" .... another way of saying "arbitrary." Politicians pass complex laws --- that are the products of compromise.
Bureaucrats (especially judges) then enforce some of these laws, ignore other laws, modify all laws, and generally feather their own nests by increasing the complexity of law enforcement --- giving them greater arbitrary power over others, and greater job security."

Bill Stepp's comments (above) are strongly personal, but they accurately reflect how our noble justice-system works in the real world. The "Bill of Rights" guarantees trial by jury, due process, a speedy trial, and presumption of innocence. We don’t have any of that anymore.

Ape Man,

as a German, I must say that it gets on my nerves big time when Americans make blanket statements about "Europe" as though it were some homogenous mass. In some cases this is actually justified (e.g., "In Europe, obesity rates are lower than in the US"), but the criminal justice systems in Europe are pretty heterogenous. For example, in Britain you have a common law system and juries, in Germany you don't.

Incidentally, Neely has a pretty good national reputation and has written broadly about his experiences and ideas. From his writings he doesn't seem like a hack, though of course those who have practiced and appeared in front of him would have a better idea of his judicial temperament. He has a Wikipedia page.


I think it's very troubling that judges are changing their decisions based on arbitrary and irrelevant considerations like whether the parties are in-state or out-of-state or when the next election cycle is. We should at least be taking a closer look at the systems of other countries. But we Americans are very attached to our unusual system of government: powerful executive elected through 18th-century compromise system and not removable except for supermajority conviction for high crime, high court with the power to overturn legislation passed by the national parliament, powerful local governments, etc. Some of these things are good, some are bad, but we love them all.

At the University of Chicago, the late David Currie was a tireless advocate for the advantages of the Article III system of appointing judges for life. He would probably have loved your work, Alex.

Is the Article III system more French than American? No. Because if William Douglas had had to pass any tests, he might never have been on the Supreme Court. You can say that that would have been for the better. But then you don't get John Marshall either.

Lenmus bis
There is not an american system either. There 51. only in 13 startes judges are elected.In the rest and at federal level they are appointed.
They are not politicians in Europre, well, Germany. Roman Herzog was President of the Constituional Court because he was democristian, he was a great judge , but it didnt count.He asked a temporal leave for a bid to the Presidency of Germany, with the condition that he can get back if he failed.He was a great president.
28% of constitutional judges have been democristian, 46% socialdemocrats.They are elected after hard negotiations amongs the political parties. And thay are pieces of the parties.In 1991 the Karlrouse Court struck down a law taht would require to elect a judge , like ABA wans in the USA, that they were non menbers of political partes.The Court ruled that the law violated the participation rights of the judges, they are not half citizens.
France, Roland Dumas , socialist, president of a oil company was denounced by his misstres in a book titled "the putain of the Republic", "the w.. of the republic" , for getting rich by ilegal means. He was not judged until he allowed it. he was President of the Constitutional Court. Separation of power means tath officials cant not be charged and go to trial.
The State Council wich carries judicial review if formed in half by government officials.
Not to mention Spain were the appointment of the member of the administrative body forr the Judicial power have been bloced for 2 years , talking about filibusterism.
In Spain, nespapers predict with great accuracy the decitions of the Constuituional Court, they only nned to know the position of the party that put them there to know how they will vote. The govermnet can recuse judges and they did it when they feared taht the conservative members will defeat tha autonomy statute for Cataluna. The extended the tenure of the President of the Court with double vote , because she is socialist and will vote following partisan line.Last ewek the recused judge die, The PP wants one of the party replacing him, is the costume. The government pleased with the opportunity wants a socialist.

Ape man
the QB VII like ruling wasright.The law force him to condem. But it was unjust because the defendant was right.he denounced the hoax tath frenchtv used to ignite the second intifada.

I think elections for judges that can meet solid criteria is a good thing. But I would change how votes are counted. If you vote for the same guy for ten years, then your vote counts. I mean we do want stability in our judges, don't we?

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