Dirk Olin: Why Judges Shouldn't Be Elected

[Dirk Olin is the national editor of The American Lawyer magazine.]

WHEN the Supreme Court resumed its term last week after its winter recess, Chief Justice William H. Rehnquist was once again missing from the bench. His absence, due to illness, has fueled speculation about when he will retire and who will replace him.

Given the state of American politics, the nomination process is almost certain to be tiresome, complete with grandstanding senators, ferocious lobbying groups and obscure pedants. Yet it remains preferable to the alternative used in most states: judicial elections.

Granted, federal judicial elections (which would require an amendment to the Constitution) have a certain superficial appeal. In a national campaign for the Supreme Court, perhaps Robert Bork could seek electoral redemption for the Senate's rejection of him in 1987. His handlers could fashion a "new Bork" who could be portrayed as "a compassionate strict constructionist." Or maybe Alan Dershowitz could run, emphasizing his defense of O. J. Simpson to A.C.L.U. supporters and courting law-and-order types with his position on torturing suspected terrorists.

Wild imaginings aside, the prospect of Supreme Court elections is appalling because it contradicts a central ideal of the American system of government. We don't elect federal judges, because we want them to be as apolitical as possible. And campaigning for office requires promises and compromises that inevitably corrode the impartiality that judges are supposed to bring to the bench.

So why does America choose almost all of its state and local judges - the ones who make the vast majority of law - by election?

It was not ever thus. Before the early 19th century, mayors and governors appointed nearly every jurist. That eventually devolved into a spoils system, however, and in the Jacksonian era reformers clamored for an elected bench. In 1832 Mississippi became the first state to constitutionally require elections for state judges, and between 1846 and 1912 every state that entered the Union essentially followed suit.

During the 20th century, the pendulum started to swing back. Governors increasingly used expert panels to make selections based on merit, with those choices later facing retention elections. But an election is an election, and an estimated 87 percent of judges today face some sort of periodic plebiscite....