Secret Squirrel here ponders things Judicial,specifically,that of Judges, and the methods used to create judges, being appointed and/or elected,dependent.It is noted here that Switzerland, Japan and the United States are exceptions to the rule in the rest of the world where judges are appointed in order to secure their independence. These three democracies allow some non-federal judges to be elected by popular vote on the grounds it helps prevent cronyism.
In most of the world where judicial selection is made by the executive branch from a civil service-like pool of professionals who have been trained in the equivalent of a school for judges,but not necessarily so,most coming from law schools, meaning they have been and are and were,firstly,lawyers. In the United States such is the case for federal and Supreme Court judges but not for the majority of state
judges who face popular election.
UN Special Rapporteur for judicial independence, Leandro Despouy gave his opinion on
juducial appointment systems.........
“In the countries I’ve visited, especially the poorer ones, judges are chosen by the
executive branch and it is up to the executive to sanction them if necessary. In general I am not in favor of elected judges. They should be chosen on a merit basis based on their knowledge and independence so they can resist all pressures to conform to the wishes of elected officials.”
However here we have a dicotomy,a conundrum,appointed they can be sanctioned
by,dis-appointed by,and are in fact, really not capable of resisting, the wishes of
certain specific government officials.Conventional wisdom says that those who appoint judges affect future judicial decisions.Judgeships could be,and are,bought and sold according to the personal preferences of those making the selection,appointments degrade the quality of the judiciary. It is not uncommon for appointed judges to loose sight of what they are supposed to be doing to start actually writing new laws themselves through the decisions they make. And is anyone really so naivé as to believe that the current appointed "independent" federal judiciary has not become a political branch? As Thomas Jefferson had warned:
"Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.""The exemption of the judges from that....from election.....is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it [control] from them, but to inform their discretion by education."
Elected ones, are subject to the people, and specifically can be removed with the next election, and can be influenced by the wishes of the public at large,which is, of course, for justice,equality,equity in the judicial processes.Voters in many US states think justice is too lenient with criminals and they demand harsher sentencing. They prefer that a judge who ignores the popular sentiment be voted out of office,thus making them accountable to the people themselves,judges must be there for be professional, objective and independent.In America,nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.
Some states have recently considered proposals that would abolish the election of State judges and replace it with a system of appointed judges who would face periodic retention elections. While supporters of this plan argue that retention elections will keep judges accountable to the voters, it is irrefutable that this plan will give judges a level of insulation from the public they have never before experienced and make them more unaccountable than ever before. The folly of this proposal is made clear both by history as well as the lessons of other States that have adopted such a plan.Originally the Founding Fathers of America feared tyranny from the Judiciary,so they placed severe limitations on that branch, employed the powers of impeachement to remove them quickly should the need arise, as Alexander Hamilton explained, "the practice of impeachments was a bridle",a way to keep judges accountable to the people,such that the general liberty of the people can never be endangered from the judiciary.For judges to campaign and win voter support actually prevents the judiciary from becoming a political branch and running a political agenda.
In the 2002 election, the appointed New Jersey Supreme Court reviewed the State law
declaring that a candidate's name may be replaced on the ballot only if the "vacancy
shall occur not later than the 51st day before the general election" and somehow decided that the 35th day before the election fulfilled the same legal requirements as the 51st day before the election. (Recall that the Democrat candidate was lagging far behind his Republican opponent in the polls; the Democrats convinced the unelected judges to place a more viable candidate on the ballot - in violation of the State law - and Democrats therefore won a U. S. Senate seat they were destined to lose.)
Elected judges know that if they make such agenda-driven decisions, they will face
removal by voters for contempt of,and violation of,State law. When judges are elected, the selection process is totally open to the public. The reasons why a particular individual may be chosen are readily visible to inquiring citizens or the press, and State Legislatures can actually specify the minimum qualifications for each judicial office,thus ensuring intelligent choices be presented to the voter.Judicial independence is essential to a functioning democracy,and the regulation of judges requires involvement of we, the people.
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