In less than one week, it will be Election Day. Here in Pennsylvania, an election for president will not be on the ballot, nor will elections for Congress, governor, or state leadership. This has not stopped $8 million from being raised and spent in the three retention elections for the Pennsylvania Supreme Court, marking a state record.
Why are these races so important? Because they can tip the power balance of the court in one fell swoop. All three judges on the ballot this year are Democrats, and if they lose their retention elections, the court could very well end up in a deadlock for two years in light of the current partisan makeup of Harrisburg’s other two branches of government. Such a paralysis of a state’s judiciary is only made possible by the asinine system that is judicial elections.
Unlike the federal judiciary, where the executive branch nominates judges and the Senate confirms them, state courts, with the exception of eight states, engage in some form of judicial elections. In the case of Pennsylvania, judges are elected and retained in partisan elections every 10 years. Such a practice makes a mockery of judicial independence.
Elections are inherently compromising since judges will produce partisan outcomes. You don’t bite off the hand that feeds you. The reason why Republicans are bankrolling the “Vote No” campaign is precisely because all three judges are Democrats, stopping them would stop the “liberal” agenda they push. The exact same logic applies to Democrats. Their political action committees and Super PACs want the three judges in power because they rule in a way that warms the cockles of liberal hearts. Judges aren’t supposed to be partisan, yet retention elections force them to be partisan to keep their jobs.
It isn’t just political parties. Businesses, unions, and lawyers have increasingly played a role in the election of judges. In this year’s court election, over half of the funds raised by the incumbent three judges’ individual campaigns came from unions and lawyers. Meanwhile, the opposition to retention has been largely backed by the Commonwealth Leaders Fund, a pro-business PAC. Although all political donations carry the risk of bias, lawyers, businesses, and unions are probably the litigants to most often appear before the courts. Thus, their influence in judicial elections is a sign of the impartiality of the court further eroding.
When the first judicial elections were introduced, they sought to make judges independent from “ideology and special interests.” In theory, judicial elections meant the judges were getting their orders from the voting public, but in reality, voters often don’t have a remote sense of what they’re voting for. Judges are banned from discussing the merits of cases with or before them. This means that there are few ways to evaluate a judge’s job performance without resorting to partisan bias. Given the clear knowledge gap, it is hard to see how elections are a good way to produce fair and impartial judges.
Judges know this. A survey found that 85% of judges believed no more than 30% of voters can make an informed choice. This has led them to engage in harsh sentencing and all sorts of bizarre displays to buff up their “tough on crime” brand. This distortion of judicial behavior reveals the perverse incentives built into electoral accountability. When judges believe their job security depends on appearing “tough,” justice becomes a performance rather than a principle. The federal nature of the United States means that these state court decisions are the end of the road, and the distortions that arise from democratic elections end up becoming permanent, entrenching an unjust system.
One could argue that appointed judges are no better. They only need to be confirmed by the legislature and they are set for life. There is no accountability from the people, and impeachments require overwhelming support from all parts of the political spectrum. But appointed judges are known quantities being chosen by people with known leanings. You know your senator’s political stripes, and you know their backroom negotiations accounted for all the dirty secrets of nominees. As well, elected judges could be wildly visionary jurists or they could just be really good at campaigning.
An elected judiciary, despite supposedly providing accountability to the people, is vulnerable to the information asymmetry that comes with judicial privacy. Appointments aren’t glorious, but closed systems have internal checks that keep the quality of judges at a certain level. Given the federal nature of the United States, relying on a democratic, informational, and asymmetrical exercise means courts with serious baggage and compositional impurities will have the last word in many cases and overturn established precedent. Retention elections are a recipe for the stripping of rights and dealing of repeated setbacks to democracy itself.
EDEN LIU is a College sophomore from Taipei, Taiwan studying philosophy, politics, and economics. His email is edenliu@sas.upenn.edu.
