The Pros And Cons Of Judicial Selection

Various methods for judicial selection exist: appointment with life tenure, appointment with term limits, direct election, or some combination of the aforementioned. The controversy surrounding judicial selection asks which method is best for American citizens—what is the most fair, equitable, and democratic way to choose who applies the law? The Constitution, at its conception, was created to be independent of political influences and the other branches of government, with “Federalist Paper 78” first defending the need of an independent judiciary to maintain and protect fundamental laws. Judges being an elected position raises the concern of whether the judges are more accountable to the Constitution, or to their voters. For this reason,

common law system adopts a slightly more democratic version of common law as opposed to its English counterparts. The case against judicial elections references the judicial system's beginnings, which represented the democratic ideals at the time. Banks and O’Brien (2016) affirm that an independent judiciary was formed in 1789 as a direct objection to the previous courts that were dependent on the will of the English King, and thus, judges were appointed by legislatures. It emphasizes that the very structure of the judicial system was built upon the need for independence from political entities that may unfairly exert their will onto sentencing. Opponents of judicial elections also contend that elections jeopardize the integrity of judges, who, if elected, become subject to issues of “voter ignorance, political bias, and corruption” (Banks and O’Brien 2016). Voter elections bring up the concern that one may be tried unfairly due to subjective interpretations of societal issues based on the dominant political opinion, instead of a fair

The dual court system of the United States gives state and federal courts different roles and responsibilities. A difference between the two is that state courts seem to exhibit less independence than federal courts. Tarr (2019) highlights that since state courts do not have “Article III guarantees of judicial independence[,]… judges on legislative courts cannot be assigned the same duties and jurisdiction as judges on constitutional courts.” By the nature of the dual court system, state courts are not responsible for determining matters of constitutionality. Rather, their duty is to deal with sentencing for conflicts among citizens, not violation of amendments nationally. For this reason, there is more demand for judicial elections at the state level, with the Brennan Center of Justice (2022) reporting 39 states having some form of state judicial election. Proponents for judicial elections believe that judicial elections will grant greater judge accountability by making voters participate directly in the selection process. Opponents of judicial elections say the waning participation in retention election renders elections in their entirety ineffective, but Tarr counters this by saying partisan electoral competitions increase both voter participation and