Judicial Elections: Good or Bad? It’s Not Clear

Historically, jurisdictions with judicial elections tended to be somewhat more anti-business than those that didn’t have judicial elections.  But in recent years, voters in some moderate and conservative states (even states like Michigan and Wisconsin that have a slight liberal tilt in presidential elections) have swept out liberal, antibusiness incumbent judges in highly publicized races.  As a result, some pro-business groups now defend judicial elections as being pro-business.

Walter Olson dissents against this view, citing the unsavory aspects of judicial campaigning, while summarizing others’ perspectives on judicial elections.

My personal view is that, on average, judicial elections are actually slightly bad for business, but slightly good for crime victims.  (One commenter explains the incentives for this).    

It’s hard to generalize, because voter and lawyer characteristics, which vary from state to state, greatly affect which way of selecting judges produces the best results.  Moderate voters will often pick a “conservative” judge even as they pick a “liberal” governor.  (As happened in Ohio, where the state supreme court is composed entirely of judges drawn from one party, while the governor is of the opposite party).  But staunchly liberal voters won’t split tickets like that, and will generally vote for a liberal judge even if he is poorly qualified or radical. 

And demographics are changing, usually for the worse.  Back when lawyers as a group were fairly moderate in Middle America, so-called “merit selection” procedures for judges (which require governors to pick from a list of bar-rated choices) used to work fairly well in places like Kansas (which once had a court that was very fair to business).  But they no longer do, because the bar has become more politically correct over time even in the Midwest and South (in Missouri, bar groups now use “merit selection” to blackball conservative judges, forcing conservative Governor Matt Blunt to pick from among a list of 3 liberal choices).  (Lawyers are more liberal than the average American: in 1992, Clinton beat Bush by less than six percentage points among the general public, but trounced him by close to a 2-to-1 margin among lawyers).  So-called “merit selection” can be worse than the alternatives of electing judges or giving the governor free rein to appoint them, masking ideological bias and unaccountable decision-making.

Although voters are not as liberal as lawyers, they, too, are becoming more liberal and more ideologically rigid in many cities and suburbs, as highly-ideological liberal professionals and politically-correct constituencies make up a growing share of the electorate.  In Dallas, local judges were removed en masse by voters in 2006, and replaced by more liberal judges, as demographics changed due to an influx of liberal party-line voters.  Such party-line voters are increasingly common in suburbs where voters used to be either conservatives or moderate ticket-splitters.  Today, that phenomenon is limited largely to certain cities and suburbs.  But as America grows increasingly urbanized, whole states may shift that way, making elections less useful as a check on a predominantly liberal bar.