Why judges should be appointed, not elected

Candidate Dan Sanchez waves at passing vehicles as he campaigns outside of Burns Elementary, May 24, 2016, in Brownsville, Texas.
Jason Hoekema | The Brownsville Herald | AP
Candidate Dan Sanchez waves at passing vehicles as he campaigns outside of Burns Elementary, May 24, 2016, in Brownsville, Texas.

This November, citizens in 31 states won't just vote for president. They'll also decide the fate of over 200 judicial candidates, from the local level up to their state supreme courts. The candidates who triumph will end up addressing matters with major implications for democracy and our economy. Contract disputes, tort cases, zoning regulations – all can fall under the jurisdiction of state courts.

With the stakes this high, it begs the question: are elections the best way to ensure that judges can decide cases objectively, insulated from political pressure?

Judges rightfully deserve praise for their public service and commitment to the pursuit of justice. But lawmakers put judges in a real bind when they enact laws that call for judicial elections. Under these circumstances, it only makes sense that judges are motivated to raise contributions and seek the approval of voters. While such steps appear innocuous, they can lead to campaigns and interest groups engaging in mudslinging, and occasionally result in a judge who weighs decisions on a political balance. This scenario may sound all too familiar, as some judicial contests start to mirror the bickering and distortions that characterize many races for legislative and executive offices.

Along with its negative effects on judicial fairness, electing judges can also weaken an area's economy. Globalization and technological progress now allow capital to cross borders with unprecedented ease. The slightest red flag can encourage investors to take their business elsewhere. In one survey, seven out of 10 companies reported that a state's litigation climate is likely to impact important business decisions, such as where to locate. And among the eight states that received a top ranking for their business climates, just one held judicial contests. Robust market economies clearly depend on stable, even-handed legal environments.

To safeguard neutrality on the bench, states should move from electing to appointing judges – specifically, through nonpartisan commissions that select judges based on merit. These commissions, which are already in place in two-thirds of states, recruit and recommend eligible nominees for judicial appointments. Dispersing power to appoint members of the commission across a variety of groups – the Governor, legislators from both parties – strengthens the commission's independence.

Appointment-based systems better serve their purpose when complemented by evaluation commissions. In 17 states, such commissions conduct thorough examinations of judges' performance during their terms. Criteria typically include understanding of relevant law, administrative prowess, and judicial temperament. As one study reports, "public confidence in judicial candidates and the judiciary as a whole is bolstered when voters receive such information through [judicial performance evaluation] programs." States can look to Arizona, whose Commission on Judicial Performance Review conducts routine assessments and even develops evaluation reports that the public can access, as a model.

But appointment and evaluation commissions can only do so much. The equation must also include recruiting and retaining the nation's top judicial minds. Sitting and aspiring judges may turn to other jobs in the legal profession if states do not compensate them adequately. In Massachusetts, for example, trial court judges actually receive a smaller salary than what is paid to first-year associates at over 30 of the state's law firms. In nearly half the states, compensation recommendations originate in the legislature, where budget battles can lead to inadequate investment in critical areas. A more objective assessment of salary levels is likely to come from a committee that is independent of the legislature.

As arbiters of our nation's laws, judges play an indispensable and honorable role. But the hype and misrepresentations that come with elections risk distorting their judgement on critical issues bearing on our democracy and economy. States should set fair salaries, establish nonpartisan commissions for appointing judges, and periodically evaluate their performance. Doing so would be a major step in ensuring that justice is applied consistently for citizens and businesses alike.

Commentary by Steve Odland, CEO of the Committee for Economic Development and former CEO of Office Depot and AutoZone. Follow him on Twitter @CEDUpdate and @SteveOdland.

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