Debate:Judges, Election of

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Should the judiciary be elected?

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Background and Context of Debate:

For this motion, the proposition must be careful to outline a plan of the exact mechanisms of elections: they must consider whether all or some judges in a country will be elected; how often the elections will be; and whether local or national; the potential pool of candidates, and the period of tenure. The significance of election will also vary depending upon the constitution of each country: the scope of judicial review, the powers of courts relative to the government (and to supranational institutions), and the historical background of the country’s legal system (civil law, common law, a written constitution, etc.). The case below remains at a relatively abstract level; each side may need to tailor it to a specific country. There are few instances of fully elected judicial systems, although the details of appointments vary. In America, judges in some states are elected, and others are subject to recall elections, so holding their tenure to account. But judges on the Supreme Court are appointed (for life in theory) by the president, and federal senior appeals judges who judge constitutional matters are appointed. In France, the judges of the Constitutional Council are appointed by the president and the heads of the National Assembly and the Senate; whilst in Germany the Federal Constitutional Tribunal is appointed by the upper and lower houses of parliament. In Italy, the Constitutional Court is made up of appointees of the judiciary, parliament, and the head of state. Britain is in the process of changing its judicial system, but some judges have already expressed fears about the proposed appointments committee.

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Accountability: Should judges be made more accountable to the public, and are elections a good way of fostering this?

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Yes

The current political and social climate is one of increasing demands for accountability in all areas of life: It is an anachronism that those who sit in judgement are not accountable to their fellow citizens.

The public is distrustful of unelected institutions and confidence in bureaucracy is waning. This means that the judiciary must retain the public confidence so necessary to a properly functioning legal system.

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No

Accountability can be achieved through other means than elections: Judges are held to account by their ability to publish dissents, and by those who have the time and special knowledge needed to assess their capability. In some countries, such as the UK, judges can theoretically be dismissed by a vote of the legislature.

Much of public life is already run by career civil servants and unelected officials. There is no reason why the judiciary should be any different. Indeed, an elected judge may view their position as simply another step on the path of political ambition, rather than as an important public role in its own right.

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Representation: Should judges be made more representative of citizens, and would electing them help achieve this?

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Yes

The system of training through law schools and vocational work is elitist and prolonged, and leaves judges’ opinions at risk of being, or appearing, out of date or out of touch. Law schools have a reputation for being more liberal than the majority. Judges are often seen as lacking knowledge of recent social trends. Election means demystification and exposure to ordinary people and their concerns.

It is true that popular ‘error’ is hard to right, but elections themselves provide safer guarantees and more transparency than systems relying on appointments.

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No

It is wrong to bow to the tyranny of the majority. Without elections, the judiciary is a branch of government that is isolated away from elections, and a check is placed on the potential for a tyranny of the majority, which can occur when a majority of the population retains dominance in elections.

Legal rulings and rights should not be subject to popular opinion: Legal decisions require a strict interpretation of law that requires in-depth legal and constitutional knowledge and training.

Repeated elections leads to insecure tenure, and less impartial decisions made by less experienced judges.

What safeguards are there for fundamental rights if the law is always open to populist interpretation?

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Authority: Do unelected judges lack the authority required to perform their function in government, and, if so, would electing them solve this problem?

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Yes

Unelected judges lack the authority and, perhaps, legitimacy that elections offer, but which should be held by a co-equal branch of government: Elections offer a certain amount of legitimacy. They confer the power of the people to a government's rule by and for the people. Lacking such electoral legitimacy, the judicial branch lacks authority. This is a problem in a government that demands checks and balances from co-equal branches. Indeed, in the United States, the judicial branch is considered the weakest of the three branches of government. But, should this be the case in a government established on the precepts of co-equal branches? An elected judiciary would be a more powerful judiciary, and thus provide for stronger checks and balances and stronger governance.

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No

The judiciary inherently weaker than the other branches of government, making it erroneous to consider equal power as an objective that would merit elections being held for the judiciary: The judiciary is almost always considered an inherently weaker branch of government due to its inherent lack of "force" and "will". This is made clear in the American Federalist Paper #78 (1803): "The judiciary...may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two...that...the general liberty of the people can never be endangered from that quarter; I mean, so long as the judiciary remains truly distinct from both the legislative and the Executive."

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Partisanship: Can judges be elected without causing them to become involved in partisan politics?

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Yes

Judges are capable of influencing political life without being party political.

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No

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Meritocarcy: would the election of officials better serve the interests of fostering a meritocracy?

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Yes

The complex, lengthy, and costly process which constitutes current legal training does not make for a fully meritocratic system; elections would allow younger lawyers and other professionals to stand for election – and the public is fully capable of recognising the best candidates.

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No

Legal merits will be outweighed by popular political characteristics in judicial candidates: The pool of candidates available will have a strong impact on the types of judges elected: money, looks, celebrity, or unabashed populism will triumph over reasoned and balanced moderation.

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References:

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Motions:

• This House would choose the bench
• This House would elect judges
• This House would judge for itself

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In legislation, policy, and the real world:

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See also on Debatepedia:

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External links and resources:

• Legal Resources Website
• UK Bar Council
• Jurist: the Legal Education Network
• Lawlinks: annotated list of legal webites
• Texas Law Review article
• Article on elected judges’ possible biases
• Article on elected judges and disciplinary hearings

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Books:

• The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France ^{H. J. Abraham}
• Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary ^{S. Shetreet}
• American Judicial Politics ^{H. P. Stumpf}