Judging Judges on Election Day

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

An attorney I know sends out an email when judicial elections are on the ballot. He says he gets many inquiries from friends about the candidates who are running for judge so he lists whom he is voting for – at the same time writing that voters should make up their own minds but don’t bother to call and argue with him. I can understand why someone in the legal profession might be hammered by friends about a potential judge’s ability to serve because it’s difficult for the average voter to learn about judicial candidates.

My ballot contains 12 contested elections for Superior Court. For the vast majority of voters, they know nothing about these candidates beyond the three word identification tags in the ballot booklet. No surprise but most of the candidates have similar IDs – prosecutor of some kind, referee or court commissioner. Little help there.

Judicial candidates can advertise of course. Judge campaign posters can be seen around the county. Judges are on mailers and one candidate paid for a biography in the Sample Ballot booklet.

Every election raises the question from so many voters: Why do we vote for judges when we can’t possibly know much about the candidates?

California’s original 1849 constitution declared that judgeships would be elected.

The move toward electing judges came after one of the most famous and now widely accepted United States Supreme Court decisions. In Marbury vs. Madison (1803) the court established the doctrine of judicial review. That didn’t sit well with some of our Founding Fathers, including President Thomas Jefferson, who feared an elitist court. Jefferson decided to abandon life tenure for judges in favor of limited terms in office.

The democratization of electing judges and holding them accountable came to full flower in Andrew Jackson’s time. The movement won its major victory when the state of New York in 1846 – before California became a state – decided that all judges should be elected.

California’s constitution writers used the New York constitution as one of its main guideposts in creating the California law.

Judicial elections were partisan affairs in the beginning but that changed in the early 1900s when there was a movement to remove judges from party political machines. In 1911, the same year voters approved the initiative process, California decided that judicial elections must be nonpartisan.

There was an attempt to remove the contests for judicial office in 1934. While voters passed a measure to allow for Supreme Court and Appellate jurists to be retained or rejected with a Yes or No vote, a similar measure applied to Superior Court judges failed. One explanation had to do with ballot placement. The successful proposal was grouped with other measures in an anti-crime package while the Superior Court measure was down ballot and right after an unpopular prohibition initiative.

In 2000, Assembly member Joe Nation introduced a constitutional amendment to move all elections to a simple retention election like the higher court judges face. The bill died in committee.

Nation’s concerns included the cost of running for a judgeship — the need to raise funds and threats imposed to an independent judiciary. Of course, retention elections do not eliminate the need for fundraising as some notable past examples of state Supreme Court retention elections would attest.

The Judicial Council of California looked at Nation’s bill and filed a report (in which I got much of this history on court elections) and concluded that there are some good things about electing judges: “maintaining some level of accountability to the public, facilitating access to the bench by diverse candidates, and providing an opportunity for public education about the judicial branch’s constitutional role.”

To be sure, the report identified pitfalls including the need to raise funds, pressure candidates to “engage in campaign conduct and speech that can cross ethical boundaries,” and threaten judicial independence.

Voters frustrated with having to choose among judicial candidates they know nothing about might like to see the system changed. However, most voters do not readily give up the right to vote. That would be an obstacle to any effort to change the voting system for judges.

And, it is not only voters who would be against changing the system.

The Judicial Council in preparing its report on the Joe Nation proposal surveyed judges about their opinions. Of 1600 survey requests, 375 were returned. (That’s about 23%, probably not too far from the predicted turnout in Tuesday’s election!)

The judges were split on the matter. Nearly 45% agreed with the proposed change to retention-only elections, while almost 53% disagreed.

We will probably be voting for judges for awhile so voters who want to carry out their responsibilities in a sober manner should do what they can: check endorsements, look at state Bar qualifications, or hope that a friend they trust in the legal profession sends them an email.

(UPDATE: The Los Angeles County Bar Association, for one, has a committee that rates judicial candidates http://lacba.org/)

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