Election of Kentucky Judges: Tyranny or Democracy?
In November, the voters will elect judges, just as they do other office holders. In the federal court system, judges are appointed by the President with the advice and consent of the Senate; they serve for life, during good behavior. So why are our judges elected for specific terms of years, instead of being appointed? It was not always so. From the inception of the Commonwealth State court judges were appointed, and it was not until the 1850 Kentucky Constitution was adopted that they became elected. At the Constitutional Convention of 1849 some delegates opposed the idea of election as a concession to “mobocracy,” but the majority believed that election would make judges more responsive to the people. The notion of making judges “more responsive to the people” arose from several events that are not necessary to discuss here, but comments were made in the Convention debates about “tyrannical” judges. Of course, if a judge rules against you, there is sometimes an inclination to think he or she was tyrannical. Likewise, today, federal judges are often accused of ignoring the will of the people.
If the concept of popular election is accepted, then we have to accept that judges must campaign, must raise money and must garner supporters. So what kind of campaigning should be proper? Should a candidate be able to tout that he or she is a devout Republicrat? Should he or she be able to state a personal belief that abortion should or should not be allowed? Should he or she be able to say that, if elected, the harshest of penalties will be imposed on criminals? What is the line between personal opinion and commitment to rule a particular way? Pending before the U.S. Supreme Court is a case involving whether judicial candidates should be able to personally solicit campaign contributions. If a judge asked you for money to fund a campaign for re-election, would you expect some special treatment in your case?
Some recent lawsuits have been filed with the avowed purpose of allowing judicial candidates to answer questions about their personal positions and beliefs on this or that issue, arguing that it is a violation of the candidates’ rights of free speech to restrict them from stating their opinions. It is worthy of note that those lawsuits are always filed in federal court, never before a popularly elected State courts judge. Why is that? Could it be because the Plaintiffs believe that they will get a more objective ruling from a federal judge?
Is popular election of judges a good or bad thing? There is much to be said for appointing judges and insulating them from the hurly-burly of drumming up money and supporters. There is also much to be said for preventing political control over judges by corrupt politicians. But is it seriously believed that in the 1960's any Georgia State judge would have declared segregation unconstitutional? In any event, it is not likely that the election of judges in Kentucky will ever be abolished. And we are fortunate that the vast majority of Kentucky judges are competent and intend to rule fairly.
There is a middle ground in all this. In one State, there is an appointment process of judges. After a judge is appointed, the judge has at least one year to establish good credentials, following which the judge must appear on the ballot at the next general election. The voters then decide whether the judge should remain in office, and they are given information about the judge’s performance in office. It is more complicated than this brief description, but the idea is that the judge runs against his or her own record, not against another candidate. It apparently works.
Arnold Taylor is the Senior Partner of O'Hara Ruberg. He is a 1965 graduate of the University of Kentucky College of Law, focusing his practice on litigation. He is the Chair of the Ethics Committee of the Kentucky Judiciary.