Don't hijack the voters' right to choose judges

COMMENTARY Election Integrity

Don't hijack the voters' right to choose judges

Apr 13th, 2015 1 min read
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues – including civil rights, civil justice, the First Amendment, immigration.

“Merit selection” of state judges sounds virtuous. But it would disenfranchise the public, stripping citizens of their right to vote for, and select, those who control the third branch of state government: the judiciary.

Critics of elected judges complain about political spending in state judicial races. Yet the complaint rings hollow; these same critics have poured millions of dollars into politically coordinated campaigns to switch to a system of judicial selection by unelected “expert” commissions.

They claim that merit selection is an “apolitical” method of choosing judges — one based on credentials rather than on policy views articulated during campaigns.

But that claim is sadly naive. Merit selection simply moves the politics behind closed doors. It turns the selection of judges over to commissions that are inevitably made up of legal elites — members of special interest groups (like trial lawyers and bar associations) with their own political agendas and ideological biases. The commissions then select a small number of candidates from whom a governor can appoint a judge, severely limiting the appointing official’s discretion.

There is no question that merit selection committees are often highly politicized, but the public and the media don’t see it because they meet in secret. Eliminating elections doesn’t create greater judicial independence. Shutting out the electorate merely makes judicial candidates beholden to a small group of insiders — and that reduces judicial accountability. Merit selection substitutes the politics of a small group of elites for the politics of the electorate as a whole.

There is no evidence that judges appointed through “merit selection” are more qualified or more productive than those elected by voters. There is no evidence that merit selection leads to a more fair and impartial judiciary, either. But it will certainly lead to a judiciary less accountable to the public.

It is the “great body of the society,” as James Madison referred to voters, who have the right to select the judges who wield so much power and authority over their lives, their safety, and their property. Those who push merit selection do not trust the American people to make a “proper” selection. Elitists always think they know best.

 - Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation.

Originally appeared in the Chicago Sun-Times