The majority of U.S. states incorporate some form of judicial election via partisan contested elections, non-partisan contested elections, or retention elections. Each of these types of election of judges presents advantages and disadvantages over a pure judicial appointment system.
The primary advantage of having some form of election in the selection and/or the retention of judges is that such systems provide a community with a voice regarding the judges who sit in that community. In some systems, this includes community selection of judges via contested election, and in others it only involves community retention of appointed judges. In either type of system, contested election or retention election, if a judge is a problem, the community has a mechanism for removing that judge. Conversely, in an appointment system, removal of a judge often requires specific kinds of wrongdoing on the judge's part and action by one or both of the other branches of government in the state.
Another advantage sometimes discussed with respect to having some form of election of judges is that such systems promote a more dynamic, responsive judiciary. In many appointment systems, judges either have life tenure or their reappointment is determined by the other branches of government. Such systems may result in a long serving, and perhaps stagnant, judiciary. Having some form of election, however, is seen as a way to promote change in the judiciary through the election of new judges or the non-retention of siting judges, as well as possibly ensuring a more responsive judiciary as elected judges or judges subject to retention election are believed to be more aware of the community ramifications of their decisions.
Many opponents of the election of judges, however, believe that the negatives of such systems far outweigh the positives. The common criticism across all mechanisms for electing/retaining judges is that such systems create a judiciary that is beholden to the whim of the public and to political interests rather than to the law. Judges should be able to make difficult decisions regarding the application of the law without fear of political reprisal if the decision is unpopular. If the judge is subject to re-election or retention, then there may be pressure on the judge to make his or her decisions based not on the law, but what he or she believes will win the next election. Critics of judicial elections argue that such situations impinge on the duty of the courts to be fair and impartial.
The above negative is most often cited with respect to systems in which judges stand for contested election, either partisan or non-partisan. A contested election requires a sitting judge to devote some of her or his time to campaigning and raising money. Both of these activities are seemingly at odds with the impartiality of the courts. To combat this, states that hold contested judicial elections include strict campaigning rules in their codes of judicial conduct. However, even adherence to these rules does not remove the political pressures of raising money and campaigning.
This problem is exacerbated in jurisdictions that hold partisan rather than non-partisan judicial elections. Given the nature of partisan politics, it is more difficult for judges to remain insulated from the policies of their parties if they must run as members of a party. Further, local partisan elections can often hinge on larger national trends, and critics of the partisan election of judges point out that good judges who are not members of the party popular in the moment may not win re-election while candidates who are members of the popular party may win seats to which they are less qualified. In other words, partisan election of judges leads to the election or re-election of judges not based on the qualifications of the judge or candidate, but based on party affiliation.
States that employ a retention election system are attempting to mitigate the liabilities of both the election system and the appointment system by keeping what are perceived to be the strengths of both systems while eliminating some of the problems. Retention systems often include a merit based appointment system for selecting judges, thus eliminating the politics and uncertainty of judicial selection via contested election. The judge then stands for at least one retention election, which gives the community a chance to remove problem judges while simultaneously insulating sitting judges from the politics of having to run a re-election campaign. In recent years, however, some of the benefit of retention election systems has been lessened by coordinated, and often well-funded, campaigns against retaining judges who have made politically unpopular decisions, regardless of whether those decisions were merited under the law.
There is no perfect system for the selection and retention of judges. Having some form of election involved ensures that the community has a role in the selection and retention of judges, and thus it appeals to the majoritarian philosophy inherent in U.S. politics. However, the election of judges and, to a lesser extent, the popular retention of judges subjects those judges to political pressures that are often not compatible with the desired impartiality of the judicial branch.
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