The Case Against Electing Judges

The Case Against Electing Judges

Many years ago, in Life Before Law School, I was an elected official in municipal politics.

Shortly after I was sworn in, one of the senior administrators with whom I worked kindly gave me the three rules he felt were all I really needed to know. The first rule was: get elected. The second was: stay elected. And the third was: deny rules one and two. Cynical? Perhaps. But it had a ring of truth to it. And in today’s political climate it underlines more than ever why judges should not be elected.

I have been involved with politics one way or another for most of my life. I come from a country where we joke that if you have three people in a room, you will have five political parties. And I do not share the deep distrust many people have for politicians. The vast majority of people I know, from all political stripes, who become involved in politics do it for the most honourable reasons. They want to be part of the change they want to see, they want to make a difference and they want to be heard. They sacrifice a great deal in the name of their principles and ambitions, and they do the very best they can to represent those who elected them.

But therein lies the problem with elected judges.

A person who is elected represents a constituency of people with shared views and shared values. Most issues are viewed through those twin prisms. It makes it virtually impossible to objectively assess issues when at some level you are required to follow the moral objectives of one group of people. It is even more difficult to be objective when you are required to go back to the electorate, and ask them to permit you to keep your job. At some level, Rule Number Two is going to be at the back of your mind: “stay elected.”

Justice needs to be impartial, detached from the social media fads, the bumper sticker slogans, and the fast-changing moods of a society with a decreasing ability to think critically. Judges need to be able to do their jobs without fear of condemnation if their decisions do not meet with approval of the Internet or special interest groups.

Of course, they need to be held accountable. But that does not mean they should have to be tailoring their decisions to the ever-changing and increasingly fickle political winds.

When Shakespeare wrote “first kill all the lawyers” the context was that if you want a dangerous and lawless society, first kill the lawyers and the judges. Judges are, essentially, society’s referees. And a referee cannot have a vested interest in the outcome of the game.

And as a footnote, in case you are interested: I broke Rule Number Two. I didn’t stay elected!

Ruth Roberts, Criminal Defence Lawyer