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27/01/2014

US judicial elections ‘shocking’ and in urgent need of reform

By Rebecca Lowe

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Judicial elections in the US pose a serious threat to the rule of law and are regarded as ‘unacceptable’ by the vast majority of legal practitioners across the world, leading judges have told IBA Global Insight.

The appointment of judges through popular election violates the principles of judicial independence, it is claimed, undermining the integrity of the courts and eroding public confidence. Of all common law jurisdictions, only the US has adopted a judicial electoral system.

Sandra Day O'Connor

'If judicial decisions are in fact not fair and impartial – or even if they are perceived to be biased – the basis of support for our courts crumbles,’ says former US Supreme Court justice Sandra Day O’Connor. ‘Public trust in the courts is essential to the functioning of our government and our faith in the rule of law.’

Judicial elections in the US are ‘shocking’ to judges elsewhere in the world, according to Michael Kirby, former Justice of the High Court of Australia. ‘It is important that US judges and lawyers should know that most of their colleagues regard it as unacceptable that judges who have simply discharged their independent, judicial duty can be subjected to removal from office,’ he says.

For Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda, and Co-Chair of the IBA’s Rule of Law Committee, electing judges for short terms erodes confidence in the judiciary and is ‘inconsistent with the rule of law and fundamental norms of democracy’.


 

‘If judicial decisions are in fact not fair and impartial – or even if they are perceived to be biased – the basis of support for our courts crumbles'

Sandra Day O'Connor
Former US Supreme Court Justice

The judges’ comments follow the publication of a report by the International Bar Association’s Human Rights Institute (IBAHRI) strongly criticising the removal of three Supreme Court justices in Iowa in 2010. The judges had joined a unanimous vote to uphold gay marriage, prompting an aggressive campaign by civic and religious groups for their removal.

Michael Kirby

Thirty-eight US states have established some type of judicial election process. Some are partisan, in which candidates are assigned to a political party, and some non-partisan. Some have a hybrid system, whereby judges are appointed on merit and subsequently stand for election to maintain their place on the bench.

While O’Connor condemns the first two systems, she is supportive of the hybrid scheme. In retention elections, judges do not face opponents and can be removed from office by majority vote. Used alongside regular performance evaluations, O’Connor maintains, such elections help maintain judicial accountability to the public. Because interest groups cannot put forward a preferred candidate, campaigning also tends to be less fierce than in other types of election.

Others, however, believe all types of election should be banned. The situation in Iowa reveals how even the retention system can be abused, Kirby argues. While conceding that actual cases of abuse in retention elections have been rare, the system itself is ‘defective in principle’, he says, and incompatible with international law.

 


 

‘In some states, the system of elected judges is further imperilled by the current concentration of funding in the hands of partisan organisations and their increasingly powerful role in the election of judges'

Richard Goldstone
 
Former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda

 

While the independence of the judiciary is enshrined in international law, there is no agreement on the method of judicial appointment. However, the Basic Principles of the Independence of the Judiciary, endorsed by the UN General Assembly in 1985, state that the sole criteria for selection to the bench must be candidates’ ‘professional qualifications and personal integrity’.

What happened in Iowa was ‘incompatible’ with the Basic Principles, the IBAHRI report concludes. It recommends that judicial elections both at the appointment and retention stage are ‘reconsidered’ by states and replaced with a system based on merit.

The American Bar Association (ABA) agrees. In the absence of imminent reform, the ABA helps to educate the public on how to vote apolitically for judges based on their abilities, not their perceived agendas. It also promotes disclosure and disqualification requirements if a judge has an interest in a case due to campaign funds spent on his election.

James Silkenat

‘There are probably a handful of jurisdictions over the past 15 years where we’ve seen more of these problems arise,’ says ABA President James Silkenat. ‘We may be starting to see a trend where outside special interest groups – as was the case in Iowa – pick a state where, because of small television markets, they can just come in and with minimal money try to influence an election in ways that just hadn’t happened before.’

Campaign funding is certainly a growing problem. In 2012, a record $29.7 million was spent to influence state judicial elections across the country, according to Justice at Stake and the Brennan Center for Justice. Half of this money was spent by non-profit organisations that often do not disclose their donors.

The impact on public trust in the courts has been substantial. In a 2012 poll by the Center for American Progress, 89 per cent of respondents said they believed the influence of campaign contributions on judges’ rulings is a ‘problem’.

Richard Goldstone

‘In some states, the system of elected judges is further imperilled by the current concentration of funding in the hands of partisan organisations and their increasingly powerful role in the election of judges,’ says Goldstone. ‘Judges who are elected with the assistance of such organisations are in fact, or at least perceived to be, beholden to those financial interests.’

And the problem ‘is only getting worse’, warns O’Connor. ‘Most of this spending goes towards television ads, which are some of the most misleading and downright nasty ads we see during a political cycle,’ she says. ‘Needless to say, these ads do nothing to promote trust in our courts or faith in the rule of law.’

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