It’s a basic tenant of American society that public-policy makers are held accountable for their decisions by an informed electorate.
For this reason, members of state legislative and executive branches across the nation are chosen through democratic electoral processes. No one suggests they be appointed through “independent” panels of “experts” to increase their effectiveness or efficiency. In fact, if anyone proposed such a measure, he or she would be denounced as an autocrat seeking to undermine a fundamental foundation of our American system.
Yet, this is exactly how several states, including Florida, choose many members of their judiciary. Today, most recognize that members of the judiciary, for better or for worse, play an important role in shaping pieces of public policy. It’s ironic that the decisions of the least accountable branch of government often have the most direct impact on the lives of citizens under their jurisdiction.
Opponents of judicial elections point to the importance of an independent judiciary. However, they are assuming that this goal is best fulfilled by appointing judges rather than electing them. What they fail to realize is that judicial selection panels, such as those used in Florida, recommend candidates for the governor to appoint to the bench and are themselves composed primarily of lawyers and judges and help move the political process away from the public eye and behind closed doors.
No state has adopted the federal system of appointing judges, so, in many instances, vetting by these judicial panels is the primary scrutiny that candidates receive. Qualified candidates often are selected for office, yet qualified candidates often are left out, giving the impression that who you know is more important than what you know.
This is not to say that an electoral system of judicial selection is perfect. Judicial independence is an important hallmark of our system. Soliciting campaign contributions and taking public positions on issues that may later come before the candidates while they are serving on the bench makes many uncomfortable because it appears to undermine judicial independence. These are genuine and well-founded fears. However, in this instance, the value of judicial accountability weighs heavier on the scale than the value of judicial independence.
Retention elections are similarly inefficient and ineffective for providing any kind of meaningful feedback on the job performance of judges because information about the judges is so low among those who vote.
Partisan judicial elections would help solve this problem by providing individuals with shorthand cues for the basic beliefs of the candidates. While some might decry the idea of a partisan judiciary, they are being intellectually dishonest. Everyone allows their personal predilections to color their judgment in some manner. By attaching partisan labels to judges, voters at least will be better able to tell where these judges stand on certain issues and will be less likely to experience buyer’s remorse.
While partisan elections for the judiciary are not a perfect system, it is the best option. Elections help bring backroom deals into the light, allow voters to see what interest groups are supporting certain candidates and allow better accountability to the electorate. These are all admirable qualities, and Florida should move further than the current reforms proposed for its judiciary and institute partisan elections for all of its judges.
Zack Smith is a first-year law student. His column appears on Mondays.
