In the United Kingdom, our judiciary is completely unelected, sparking accusations of cronyism, a lack of democratic legitimacy, and corruption, but when compared to countries and regions where the courts are elected, the UK's system stands out as a remarkably well-oiled machine. In the US, however, judges are more commonly elected at the state and local level (the federal judiciary remains wholly appointed), and the US is, unsurprisingly, seen across the world as a dysfunctional political system - leading to the characterisation of US-style democracy as "America's deadliest export" by the American journalist and author William Blum. But what impact does the election of judges have on the integrity of the judiciary, and does it actually hurt democracy as much as we might think?
Politicisation of the judiciary
The main argument in favour of an appointed bench is that it holds back the growing tide of politicisation. Now, of course, this doesn't mean that appointed judges are immune from accusations of acting politically - just look at the confirmation of Brett Kavanaugh, or the decisions in both Miller cases in the UK - but, at the very least, an appointed judiciary allows for the veneer of impartiality. This has been widely accepted by the judiciary itself, with Justice O'Connor writing in her decision in Republican Party of Minn. v White that "If the state has a problem with judicial impartiality, it is largely one the state has brought upon itself by continuing the practice of popularly elected judges." While some scholars, such as Choi, Gulati, and Posner, believe that this 'backhanded' criticism of the Minnesota elected bench is tantamount to a sort of elitism - the belief that voters are not equipped to elect their judiciary because they simply don't understand the complexities of the law. This argument may not be the most popular, but it does reveal an uncomfortable truth: the law is still inaccessible to most people, and until it is made accessible - if it ever will be - the solution is not to thrust political figures into positions of statutory interpretation, but instead to ensure that those who serve on the bench are the most qualified, and, simply put, those who run for elected office are often not the most qualified.
The world is becoming a more polarised place, particularly in media and political discourse, and nowhere is this more evident than in the nominations to the US Supreme Court. Brett Kavanaugh accused the senators voting on his nomination as participating in a "political hit job" orchestrated by the Clintons, and the senators fired back. In the end, his nomination was confirmed by the Senate in a 50-48 vote. Not since 1949 has a Supreme Court nominee been approved with less than 58 votes in the Senate (with the exception of Clarence Thomas, who was also accused of sexual assault during his confirmation hearings), and yet this happened twice during the Trump presidency, which speaks volumes about the polarisation his administration has brought with it, not just through the traditional political fights about government spending and foreign policy, but even when it comes to Supreme Court nominations. Despite both of Trump's nominees being deemed well qualified by the American Bar Association to serve on the Supreme Court, partisanship took over, and perhaps it would make sense to remove the veneer of impartiality, and allow politics to simply run its course in electing the bench.
But this doesn't work.
The West Virginia Problem
When asked to illustrate why I am so opposed to an elected bench, I always point to the example of the Supreme Court of West Virginia.
West Virginia is a relatively small state, ranking 41st in area and 38th in population, and its politics lean to the right, having voted for Trump by a 42-point margin. West Virginia is also one of 21 states to elect their Supreme Court, and until 2015, they did so on a partisan basis. It was only after the Republicans took control of the West Virginia Legislature that the elections turned non-partisan. Corruption and political bribery is no secret in West Virginian judicial decision-making, with coal companies spending big to defeat "anti-coal" Democrats, according to a Huffington Post article, and defeat measures aimed to increase environmental regulations and, potentially, decrease mine safety standards. The situation got so bad that, in 2014, John Grisham published a novel attacking the state of strip-mining standards in West Virginia, and condemning the partisanship of the West Virginia Supreme Court.
But just because of campaign contributions from coal companies and a book written by a liberal author doesn't mean that the West Virginia Supreme Court is any worse at its job, or indeed, any more corrupt, than a standard appointed judiciary. That all changed when, in 2017, all five members of the Supreme Court were impeached by the West Virginia House of Representatives in connection with corruption, overspending, and lack of oversight. Two of these judges were even convicted in federal court for fraud, witness tampering, and lying to the FBI. It is not unusual for criminals to be found in groups, but what is unusual is the unique status of these criminals - the fact they served on the highest court in West Virginia. Rather than being appointed, and being grilled by a panel of legal professionals, with the extensive background checks that come with a judicial appointment, these justices were instead elected by citizens who have fewer professional degrees than average in the US, which inevitably means that the citizens of West Virginia are less prepared to understand the complexities of the law. This is not to criticise West Virginia's people - it is inevitable that voters cast their ballots based on issues important to them, and a study by Hagan published in 1988 showed that the West Virginia Supreme Court was less activist when it came to decision on criminal law, which directly affects them far more than decisions in public or tort law, where the Court was far more activist. Without a broad panel of legal experts assessing a range of legal decisions, based on prior judgments or papers, justices are bound to be elected based on one facet of their legal career, which leads to an unqualified court in the other disciplines where they must also rule.
The fact that the Court is now elected in non-partisan votes hasn't changed much. Unlike the US Supreme Court, the political party of all the members of the West Virginia Supreme Court is not only suspected, but outright known, as all the justices have previously run as a partisan figure, or served in partisan elected office. Indeed, the first non-partisan elections took place in 2016, and a year later all those elected members were impeached. Therefore, non-partisan elections are not the solution, but an appointed judiciary that serves the people, even if it must suffer the stain of elitism for now.
Conclusion
The state of politics is polarised - that shouldn't come as a surprise. But all is not lost in government; the US Supreme Court has remained the most popular and trusted branch of government even in 2020, with numbers even steadily increasing to the current high of 58% after the nomination of Brett Kavanaugh, the most polarising nominee in recent history. Both Republican and Democratic nominees who serve on the Court do so with dignity and with the impartiality that protects the image of the institution as one which grants 'equal justice under law' - the words inscribed on the Court's facade. Even in the most polarised and partisan of times, an unelected judiciary besmirched as elitist, out-of-touch, and undemocratic is still the most successful of the United States's branches of government, and elections would drag the Court down into the mud of campaigning and politicking that has divided the US, and the rest of the world, these past years. Therefore, it is my conclusion that electing the bench does not work, and fudges the incredible work that judges do to serve the law.
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