Mexico is poised to amend its constitution this weekend to require all judges to be elected as part of a judicial overhaul championed by the outgoing president but slammed by critics as a blow to the country’s rule of law.
The problem is that the judges often use their decisions to campaign instead of simply applying the law. So they might give an unpopular criminal defendant a harsher sentence to look tough on crime or even tilt a trial against an innocent defendant. Not that doesn’t happen with judges that are appointed by the executive, but it’s usually not as bad.
“usually not as bad” requires a citation, since we can point to lots of evidence of systemic injustice in sentencing as it is. example
What you are describing is a judge pursuing an agenda and/or having an unconscious bias, which is what we have already. That’s the thing I keep getting with objections to voting in judges, problems that we already have presented as though they only apply to elected judges, or problems that would be demonstrably less bad with popular input.
As far as I can tell, that’s mostly not what the study says. What it is saying is that the event of a judicial election and the pressures associated therewith demonstrably cause systemic disadvantage to defendants and appellants near election time, but it doesn’t actually address how the overall rulings of elected judges compare to appointed judges except for one study it mentions that does say, in your defense, that they [elected judges] reverse death sentences less often in the states that have the death penalty. However it goes on to say:
These studies leave open several important research questions. For example, they generally do not
compare systems, and thus do not address whether some re-election or retention election systems have
more of an impact on criminal justice outcomes than others, or whether reappointment processes may
also have an effect.
And later says:
Much of the empirical research considering the impact of judicial selection dynamics on criminal justice
outcomes has focused on elections. Further study is needed to understand the incentive structures
created by appointive systems, particularly those that provide for reappointment. The few studies that
have considered these dynamics suggest there may be reasons for concern.
For example, in one such study, Joanna Shepherd examined how the political preferences of those
determining whether to extend a judge’s tenure impact judicial decision-making. Just as the public’s
preferences may impact case outcomes within electoral systems, Shepherd found that the preferences
of governors can have a similar effect in states where they play a role in reappointing judges. 92 Indeed,
Shepherd determined that as governorships change hands, so too do judicial rulings; when a Republican
governor replaces a Democratic governor, judges’ rulings in a variety of cases, including criminal cases,
shift.93 Shepherd’s findings suggest that reselection pressures are a concern even outside the election
context, and highlight the need for further inquiry into the dynamics of appointive systems.
And that’s really the full extent to which it addresses the subject of appointment.
I’d rather an incompetent evangelical ghoul hold office than a competent one, but I don’t really see a point in your argument either way since those same places are getting evangelical ghouls appointed already. It’s not like there’s some enlightened progressive governor presiding over a clear majority of racewar enthusiasts or whatever. When there is a disjunction between a politician and their “constituents,” it is usually that the politician is more conservative than the people, but the people weren’t given someone more progressive to vote for. That’s the way the system works, it is fundamentally right-biased, with many checks on democratic power.
The problem is that there is value in legal systems producing consistent results, especially when it comes to the kind of law both sides can spend millions on. Without consistency, the legal system backs up more than now as rulings are so wildly different that it makes sense to play the lottery with the courts. That causes cases to sit even longer and defense costs to raise higher for smaller participants.
And if the system doesn’t perform well for those less advantaged, courts aren’t the best place to defend making this systematic change. At best, it acts as a relief valve to pushing actionable political change.
And if the system doesn’t perform well for those less advantaged, courts aren’t the best place to defend making this systematic change. At best, it acts as a relief valve to pushing actionable political change.
Having a judge who won’t rule your relatively benign protest action to be “terrorism” seems like a good way of supporting systemic change.
But that requires the public voting. In Mexico, it also requires planning out judicial succession as the executive branch has term limits and I expect this would get propagated to the judiciary.
You need judicial succession anyway, given that people die, but we have plenty of examples of the intuition you express there not holding up. After all, there are no term limits for US congress people despite the strict term limits for the President.
Of course, I oppose term limits, I think they’re another guardrail for capital, since the capitalists don’t have a term limit on their wealth, which they can use to keep backing pliable puppets.
I’d rather have a bumbling judge who is trying to help people rather than a competent evangelical ghoul
The problem is that the judges often use their decisions to campaign instead of simply applying the law. So they might give an unpopular criminal defendant a harsher sentence to look tough on crime or even tilt a trial against an innocent defendant. Not that doesn’t happen with judges that are appointed by the executive, but it’s usually not as bad.
“usually not as bad” requires a citation, since we can point to lots of evidence of systemic injustice in sentencing as it is. example
What you are describing is a judge pursuing an agenda and/or having an unconscious bias, which is what we have already. That’s the thing I keep getting with objections to voting in judges, problems that we already have presented as though they only apply to elected judges, or problems that would be demonstrably less bad with popular input.
Via the Brennan Center. Elected judges are more punitive and more likely to rule against defendants.
As far as I can tell, that’s mostly not what the study says. What it is saying is that the event of a judicial election and the pressures associated therewith demonstrably cause systemic disadvantage to defendants and appellants near election time, but it doesn’t actually address how the overall rulings of elected judges compare to appointed judges except for one study it mentions that does say, in your defense, that they [elected judges] reverse death sentences less often in the states that have the death penalty. However it goes on to say:
And later says:
And that’s really the full extent to which it addresses the subject of appointment.
You can get an incompetent evangelical ghoul voted into office. How do you think most county magistrates get voted in?
I’d rather an incompetent evangelical ghoul hold office than a competent one, but I don’t really see a point in your argument either way since those same places are getting evangelical ghouls appointed already. It’s not like there’s some enlightened progressive governor presiding over a clear majority of racewar enthusiasts or whatever. When there is a disjunction between a politician and their “constituents,” it is usually that the politician is more conservative than the people, but the people weren’t given someone more progressive to vote for. That’s the way the system works, it is fundamentally right-biased, with many checks on democratic power.
The problem is that there is value in legal systems producing consistent results, especially when it comes to the kind of law both sides can spend millions on. Without consistency, the legal system backs up more than now as rulings are so wildly different that it makes sense to play the lottery with the courts. That causes cases to sit even longer and defense costs to raise higher for smaller participants.
And if the system doesn’t perform well for those less advantaged, courts aren’t the best place to defend making this systematic change. At best, it acts as a relief valve to pushing actionable political change.
Having a judge who won’t rule your relatively benign protest action to be “terrorism” seems like a good way of supporting systemic change.
But that requires the public voting. In Mexico, it also requires planning out judicial succession as the executive branch has term limits and I expect this would get propagated to the judiciary.
You need judicial succession anyway, given that people die, but we have plenty of examples of the intuition you express there not holding up. After all, there are no term limits for US congress people despite the strict term limits for the President.
Of course, I oppose term limits, I think they’re another guardrail for capital, since the capitalists don’t have a term limit on their wealth, which they can use to keep backing pliable puppets.