Pros and Cons - Debbie Newman, Ben Woolgar 2014

Judges, election of
Section G. Crime and punishment

In the USA, most judges at a state level are elected, but federal judges are appointed by the president, subject to confirmation by the senate. In the UK and most other ’common law’ countries, judges are appointed, usually by independent and expert commissions. It is important to realise that there are many indirect consequences of elections of judges, most prominently the increase in politicisation of the judiciary. Judicial appointments outside the USA receive very little public scrutiny, whereas in America they are front-page news. It is important to recognise that judges perform a wide range of functions, which may differ in their relevance to politics; interpreting the Insolvency Acts is unlikely to be a highly political activity, but reducing murderers’ sentences obviously is.

Pros

[1] Being a judge is an inherently political activity; judges make decisions all the time about how rights in constitutions or human rights laws are to be interpreted, which define the limits of what governments can do to their citizens. For instance, there is nothing exclusively ’legal’ about the decision as to whether abortion or gay marriage are legal, or the limits of the right to strike; these decisions should thus be governed in the same way as other political ones.

[2] If judges are appointed, then the government of the day will be able to appoint judges who are sympathetic with their legislative programme and policies. If judges are elected, on the other hand, they will often be figures who are critical of the government of the day, as happens in midterm local government elections, which almost always favour the opposition parties over the governing party.

[3] It is right that the law should be open to indirect influence over time by public opinion, rather than being entrusted entirely to an often out-of-touch, elitist, establishment-appointed judiciary. Electing judges with known views on crime and punishment (e.g. for or against the death penalty, in favour of retribution or rehabilitation, tough or lenient on drugs and prostitution, etc.) means that the judicial process is democratised, and figures can be elected in order to shape democratically the way that law is interpreted, implemented and evolves.

[4] Elections do not need to put their candidates at the mercy of large corporations. There are plenty of other funding bodies that could get involved, such as trades unions or legal campaigning groups. Moreover, it would be perfectly viable simply to cap funding, or provide state funding, to prevent these problems.

Cons

[1] Most judicial decisions are not really political; they involve arid, technical debates about the correct approach to interpreting contracts, or causation in medical negligence claims, or the rules for transferring property; such decisions are best made by experts in those fields, and should not be swayed by democratic pressure. Moreover, big constitutional decisions on abortion or gay marriage are legal; they involve interpreting statutes which have been laid down.

[2] If judges are elected at the same time as the government, then far from dissenting from the government, they will be far more likely to share its views. If they are elected at a different time, then there will simply be insufficient interest in these elections, and so they will be hijacked by extremists.

[3] In a civilised society we should seek to minimise the influence of ’mob rule’. Democratic and judicial processes are set up specifically to remove important judicial decisions from emotive public pressure and prejudice. Elected judges will pander to public opinion (e.g. turning down appeals against death penalty sentences), seeking votes rather than justice. Second, public opinion already has enough influence on the judicial process. Punishments and laws are set by elected politicians, and the judiciary typically shows considerable deference to those politicians on matters of public policy.

[4] Elections in the modern world can involve huge amounts of money; which may mean prospective judges would need to raise money. In certain jurisdictions, like the USA, this may mean that candidates might have to seek funds from corporations. This would make judges who win elections more vulnerable to corporate pressure, which undermines their role in enforcing the law — particularly in disputes involving the companies which funded their election campaigns.

Possible motions

This House would elect its judges.

This House believes that supreme court officials should be elected.

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