Judicial Elections in the U.S. State Courts and the Implications of Campaign Speech and Contributions

The American system of judicial election has been the hallmark of the legitimacy of the judiciary because it allows individual citizens to directly elect their own judges. The fact that citizens gave more legitimacy to the judiciary when the judges are elected directly by citizens than when they are selected in other manners has a great deal to do with the fact that the elected judges are more accountable to the citizens. However, the recognition of legitimacy by the citizens does not necessarily mean that the election system is perfect by all means. The judicial election systems have come under attacks and been subject to criticisms in the past as well as currently. The criticisms are mainly aimed at the problems related to campaign speeches and campaign contributions. First, a concern about judicial independence can arise because judicial candidates' declaration of their positions on controversial political or legal issues during campaign can lead the public to believe that the candidates cannot be impartial and independent in their decision-making once elected as judges. Permitting judicial candidates to make campaign speeches freely can provide the electorates with more information and thus encourage them to vote more actively, thereby increasing the level of public participation in the judiciary. However, a concern can arise when judicial candidates make political promises to garner supports in upcoming elections. For a judge or candidate to make a promise to employ a particular doctrine or ideology does not seem to square with the judicial roles and public expectations. Explicit policy promises can be perceived by their recipients to create a quid pro quo relationship between candidates and recipients. These would be in turn perceived by the public as unreasonable level of political expression undermining judicial independence. When the judges who are elected by citizens accept campaign contributions from donors, the independence of the judges can be questioned because the future rulings by the same judges may be made in favor of the donors. The appearance of impropriety in the form of quid pro quo relationship should be avoided by all means. It may be necessary to require judges to recuse themselves from the cases where a contributor for that judge's campaign is involved. The problems associated with campaign contributions and campaign speeches may be lessened by using the commission-retention system. Under this system, the judicial nominating commission is required to select and prepare a list of nominees for judicial vacancies thereby removing the necessity of initial campaign activities and campaign contributions. It would be important to ascertain that the commission members are chosen from diverse group of people to represent the diversity of the constituents. Along the same line, it would be essential that the selection process by the commission is fair and transparent and also reflects the general will of the constituents of a particular community.