Marquette University Law Professor Jason Czarnezki argued way back in 2005, before Supreme Court elections got really ugly, that electing judges may not be the best way to go.
"I haven't changed my mind," Czarnezki said in an interview this week. "I think I feel more strongly than I did before."
Czarnezki's 2005 paper, "A Call for Change: Improving Judicial Selection Methods" focused on the Wisconsin Supreme Court, but he said during the interview that judicial selection at all levels needs improving. A merit-based appointment system may be the best option, he said.
The authors of the Wisconsin constitution felt that elections would not compromise judges' independence because, Czarnezki wrote, "judges would be elected by diverse citizens from large geographic areas with little political stake in the results."
He added: "Where Wisconsin's constitutional drafters truly erred in their analysis and in preferring an electoral system was in failing to understand the practical effects of election itself on judges."
Elected judges behave differently than appointed judges do, said Czarnezki, now a law professor at Pace University in New York City. Judges facing election, even if they originally were appointed to their jobs, "become even more harsh and sentence people at a greater rate" than do appointed judges, he said during the interview.
On the State Supreme Court, he wrote in his 2005 paper, "justices appointed by the governor were fifty percent more likely to vote for a criminal defendant's claim than they would be in later elected terms, or if they had been elected to their first term. On the other hand, those justices who immediately faced electoral pressures and were elected in the first term are sixty percent more likely to vote against a defendant's claim in the first term."
Judges don't necessarily worry that a particular ruling may offend public opinion, he said. They worry that someone will use a decision against them during their campaigns. "In other words," Czarnezki wrote, "judicial independence is sacrificed because the cost of a controversial decision may be to stir up a contestable and provocative issue for a future opponent."
The passage of a decade didn't change judges' behavior. The Brennan Center in December 2015 released a report on the impacts of elections on criminal cases. It found found, among other things, that the more often TV ads are shown during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants and the closer judges are to election, the longer the sentences they hand down in criminal cases.
Another analysis, by Reuters, found that elected justices in death penalty states were far less likely to reverse death penalty sentences than were justices who were appointed.
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