There has been a lot of discussion recently about judicial elections, after Iowan voters decided not to retain three of the State Supreme Court justices who held that the state constitution undermined the law banning same sex marriage. Our own Joe Jerome, king of this blog, is an Iowan voter, and cast his ballot in favor of retention. I would have also voted to retain those Iowan justices. However, I'm a little skeptical of the claims of Sandra Day O'Connor and the Justice at Stake campaign, which have called for a complete end to judicial elections.
Any method of judicial appointment balances between the goals of independence and accountability. While we don’t want judges to constantly be concerned with running for re-election and raising campaign funds, it’s important that judges are accountable to someone. Professor Barry Friedman argues that federal judges generally follow popular opinion, and points to some of the checks Congress has over such judges. On the state level, judges have even more power, since they are generally unconstrained in creating common law. Common law, as we all know from 1L Civ Pro, allows judges to make basically legislative decisions that affect how people live their lives, like laws involving torts and contracts. Since common law rules affect voters, those voters must have some opportunity to change the rules and constrain the judges who create them. There are a number of ways to do that, and I’m unconvinced that judicial elections are clearly wrong.