Opinion: Disorder in the Courts, the Case Against Electing Judges

Carl Golden | May 26, 2017 | Opinion
The corrosive effect of ‘justice for sale’ would be devastating to the idea that the courts represent a fair and just forum for grievances

Carl Golden
It’s an idea that’s floated around the Legislature for decades: Amend the state constitution to provide for the election of all judges, Superior Court as well as Supreme Court, as a way, its supporters claim, to rein in an out-of-control judiciary fond of legislating from the bench.

The latest iteration, while scant on details, was offered by two Republican senators, Gerald Cardinale of Bergen County, a long-time critic of the judiciary, and Michael Doherty of Warren County, one of the Senate’s leading conservative voices. 

Their proposal stops short of requiring judges to stand for election and establishes what is commonly called a retention process under which the name of a sitting judge or justice would appear on the ballot unopposed at four-year intervals and voters would decide whether the jurist should remain on the bench.

The same flaws that have consistently doomed earlier efforts are apparent in this proposal as well.

An unhealthy political intrusion

Previous attempts to replace at least a part of the current system of gubernatorial nomination and Senate confirmation have never been able to rebut effectively critics’ contention that electing judges represents an unhealthy political intrusion into a system whose very existence and credibility rests on a foundation of scrupulous fairness and impartiality.

An elected judiciary, opponents argue, would lead inevitably to suspicions that litigation outcomes would be unduly influenced by prevailing political pressures or favor individuals or parties active financially or organizationally in a judges’ campaign.

Should belief become widespread that decisions are based on factors other than constitutional or statutory merits, public confidence in the integrity and independence of the judiciary would diminish steadily.

While the retention process avoids the one-on-one contest of a traditional election, it nonetheless places a campaign burden on a sitting judge seeking to remain in office.

He or she must mount some level of defense to fend off attacks, necessitating a fundraising effort to support communicating with voters through mailings or other outreach programs.

Ethical questions

It is the source of such funds that raises serious ethical questions. Would, for instance, a law firm be permitted to donate or solicit donations? Would businesses or individuals with cases pending be prohibited from contributing? Would contributions come from sources who may not be involved in litigation currently but could become so in the future?      

Private interest groups or political action committees who oppose a judge’s continuing in office would certainly have the wherewithal to raise and spend considerable sums to promote their cause while the judge would be unable to match it.

The corrosive effect of “justice for sale” would be devastating. The courts have historically been the place to which people could turn to seek a fair and just forum for their grievances. Losing that belief would turn the third branch of government into little more than a twig. 

While the questions and concerns raised over campaign contributions are serious ones, there are other practical considerations as well.

In a retention election, voters would be asked to pass judgment on four years’ worth of decisions and opinions attributed to a judge, even though the cases involved may be extraordinarily complex, sensitive, and have evolved over several years.

Even the most outspoken supporters of a judicial election system concede that the overwhelming majority of voters are not equipped by profession, occupation, education, training, experience, or knowledge to fully understand all elements or ramifications of court rulings.

Delving into decisions

It is, moreover, foolish to believe that very many voters would spend time delving into and studying four years of decisions, parsing language, and wading through a bewildering array of judicial precedent and arcane legal terminology to reach a full understanding and cast a vote based on it.

The periodic emergence of judicial election proposals often reflects an unhappiness with a particular decision or decisions, a sense that the courts have exceeded their authority and encroached on the lawmaking process.

High-visibility cases such as the long and tortured history of school funding and the equally protracted litigation involving affordable-housing quotas are often cited as examples of out-of-control judicial activism.

The political disagreements over these two cases are very longstanding and, even though legislative remedies are available, consensus has proven elusive.

A cynic’s view suggests that legislators flinch from the political risks involved in developing solutions to the school and affordable-housing cases, finding it safer and more convenient to lay blame at the doorstep of the courts.  

It’s highly unlikely that the Cardinale/Doherty proposal will receive serious legislative consideration in what remains of the current legislative term.  Nor are its prospects any brighter next year when the Democrats will still hold the majority and when the odds of a Democrat in the governor’s office are favorable.

Despite its decades-long history, an elected judiciary is an idea whose time has not come. And, if New Jerseyans want to maintain a fair, impartial system free from political dominance, it should be an idea whose time will never arrive.    

(Full disclosure: From 1990 to 1993, I held the post of public affairs director in the Administrative Office of the Courts, serving the judiciary and the Supreme Court.)