The voters in many states elect the judiciary all the way up to the State Supreme Court. In Michigan we have seven Supreme Court Justices who are elected to eight year terms, subject to retaining their position on the bench by being reelected at the end of the term. Federal Judges are nominated by the President to the bench for life and confirmed by the Senate.
Clearly, the vast majority of the cases litigated are decided at the state court level. Over the years, the importance of the decisions made by the judiciary in any given state has created a debate about whether State Supreme Court Justices should be appointed or elected, including Michigan.
Although there are a litany of pros and cons for each side in the appointment versus election debate, one of the most predominant reasons supporting election is that the judges are answerable to the people and in a democratic society they should have a say in who is on the bench. On the other hand, the advocates of appointment argue that judges ought to be chosen for their knowledge of the law and experience in the courtroom, something that the voting public is not privy to, making them ill equipped to choose the most qualified candidate.
Judicial elections historically have not garnered significant public attention, followed primarily by attorneys. Roughly 25 years ago or so, judicial elections became well defined. The plaintiff attorneys handling personal injury cases supported and contributed to Democratic candidates for a position on the bench. The defense attorneys representing large corporations and insurance companies supported and contributed to the Republican candidates. As time went on, even the Trial Lawyers Association and other special interest groups lost ground to tort reform and big business money. Corporate interests and lobbyists poured money into judicial campaigns raising the bar from $3 million in 1990 to over $45 million in 2000, in some states.
In Michigan, the 2010 election for two Supreme Court Justices was one that was inundated with questionable negative claims and costing something in the range of $5 million to $8 million. In 2008, the Michigan Supreme Court race was said to have cost $5.9 million and pitted the challenger against incumbent Chief Justice Cliff Taylor, who was shown to be asleep on the bench. Over the past decade, Michigan has ranked third in the nation for television advertising at $10.9 million.
According to a survey of Michigan voters, 63% agreed that the magnitude of campaign contributions serves to affect judicial decisions. Some 31% said that the amount contributed makes “a lot” of difference. Such a study seems to verify that voters believe that litigants and special interest groups can gain an unfair advantage by contributing heavily to judicial candidates who are known to support their view and will have the ability to influence a decision in their behalf.
As in any debate, just like applying the law to different fact situations, there is no absolutely correct answer. However, as an experienced criminal trial lawyer in Michigan, I feel that our Supreme Court Justices should be appointed based upon their knowledge of the law, experience in the courtroom and their ability to render non-partisan decisions based upon the law and not the deep pockets of any lobbyists or special interest groups expecting special treatment based upon money.
Scott Weinberg is an experienced Michigan criminal trial attorney who has devoted his practice to defending the rights of people for 25 years. In addition to handling criminal cases at every level, his high profile practice still allows him time to act as an expert commentator and appear on his own television show, “Weinberg On The Law.”
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Judges For Sale, The New Yorker, Article by Jeffery Toobin, August 14, 2012