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Should Judges Be Appointed or Elected?

Ben Franklin thought that judges should be elected. He thought that the voting public would select the best person for the job. See page 455, Benjamin Franklin, An American Life by Walter Isaacson.

Judges are appointed in Canada. In the U.S.A. federal court judges are appointed. Some U.S.A. states elect judges. Many years ago a Denver lawyer told me that Colorado lawyers prefer to elect judges because it tends to make the judges accountable and responsible. In Canada supreme court judges are appointed until age 75. Some appointed judges act irresponsibly. For example, when I was practicing law in New Brunswick in the 1970s I acted for the plaintiff in a trial before a Queen’s Bench judge on a real property matter and the judge took five years to render a decision.

In the U.S.A. some elected judges receive campaign donations during elections from persons who later appear before the judge as an accused or as a party. The appearance of a conflict is apparent.

A retired Canadian judge told me that the problem of a Canadian judge being irresponsible is probably lessened by the recent improvements in the selection process. All appointments of federal judges and provincial supreme court judges in Canada are made by the Federal Cabinet. The quality of such appointments has since Confederation been generally very good. Since 1867 very few judges in Canada have been removed for misconduct.

The Canadian appointment process has resulted in a high degree of judicial independence. Independent judges tend to protect individual and democratic rights and the rule of law.

Comments

  1. Whether elected or appointed much is dependent on the oversight of judges. Not only should the judiciary be non-partisan but so should the oversight of the judiciary. How is the process of oversight viewed by the public? Although there may be few judges removed for misconduct some may see this as the result of bias. Is the process and system of oversight transparent and accountable? An appointed judiciary can be as effective as an elected judiciary and vice-versa if there are effective checks and balances and such are implemented impartially.

  2. Elected judges are politicians, i.e., personal politics first; justice second: consider this real life case: police in an American state use the computer of a distributor of child pornography to trace and thereby locate recipients, including the accused X. He pleads the “Trojan horse defence,” i.e., he innocently received into his computer a good program or text that contained a hidden program containing or leading to the child pornography being on his hard drive. (See: Miha Sepec, “The Trojan horse defence – a modern problem of digital evidence”, (2012), 9 Digital Evidence and Electronic Signature Law Review 58, at: http://journals.sas.ac.uk/deeslr/issue/view/309/showToc (open access pdf. download). It discusses the unintended and accidental downloading of such malicious code, which might not be detected by anti-virus software. “Hacking” into computers and databases is frequently facilitated by such unguarded downloading.)
    X is convicted and is sentenced to 5 years in penitentiary. His attorney tells him: “this judge is up for re-election.” The judge wouldn’t want his opponents and detractors claiming that he’s “soft on child pornographers, and child pornography.” Thereafter lacking income, X loses his house. His wife, a Canadian, and their children have to move back to her parents’ home in Canada for a place to live and school for the children. He’s released on parole, but can’t leave the state. Even so, very unlikely it would be that he would get into Canada while having a record for such an offence. A divorce has taken place.
    An appointed judge may have imposed the same sentence, but without the appearance of a personal conflict of interest greatly detracting from the appearance of justice. And it is more likely that a convicted accused person would accept his sentence and retain the belief that the justice system is capable of “doing justice.”

  3. Sebastian Strong

    Do we need to look any further than the US to know that elected judges are a big mistake.
    One of the more prominant examples would be Cheif Justice Roy Moore of the Supreme Court of Alabama. He was tossed off the bench by the Supreme Court of the United States for violating the constitution in placing and refusing to remove 10 Commandments from the court steps. 2 years later he was re-elected and put back on the Alabama Supreme Court to now defy a US Supreme Court order on same-sex marriage and order state judges to violate the Supreme Court ruling and not issue marriage licenses. He was tossed off again and because of his age will not be able to run again (though he would easily win another election).

    The people do not pick the best judge… the “people” largely do not know what a judge does or who would make a good judge. It becomes another election where the wealthiest or most charismatic person wins (or in the case of Alabama, the most dogmatic or hateful), and those traits do not necessarily make for good judges…

  4. I agree that the “people”, regrettably, remain largely uninformed about what judges do. And from what I’ve seen it doesn’t appear that there’s ever been a call by members of the public for any judges to be elected. This seems to be something the legal establishment likes to raise in support of an argument that what we have is acceptable.

    Perhaps there is among slaw’s contributors and readers someone who can answer a simple question. Where else in the world currently are judges elected, besides the example of the U.S. that is always cited?

  5. Elections are a wonderful way to pick representatives (although in Canada our love for an appointed Senate sometimes makes me think we’d prefer to have our representatives selected for us).

    Judges, however, are not representatives of the people. They are not our agents or our delegates. They administer justice. They are not accountable to the people and the people should not elect them.

  6. Fact is, no federally appointed judge has ever been removed from judicial office. That could be evidence of a good judiciary, but also possible that the judicial discipline and removal process has not been as effective as it might be. And while it’s likely accurate to say that judges tend to support democratic values, there are plenty of examples in Canadian history of the judiciary and individual judges acting in ways that also seemed also to promote private, elite and state values, which at times in the past were very illiberal. There may be nothing inherently bad or good in either choice, appointment or election, but a lot depends on the other institutions that support the judiciary. This includes an independent Bar working with governmental institutions to maintain independent adjudicative forums, particularly in our court system. Worth talking about changes, especially given the risks demonstrated by historical examples, but right now the judicial system in Canada seems largely functional.

  7. >>Fact is, no federally appointed judge has ever been removed from judicial office.<<

    That's because those who were going to be resigned before being formally removed, so they didn't have to be removed. Kept their pensions, that way.

  8. In the opinion of the Chief Justice of Canada judges although appointed are indeed accountable to the public. She states: “We sometimes hear that the judiciary is unaccountable because judges are appointed and because they hold office during good behaviour to the age of 75,” McLachlin said.
    “I believe that this concern is misplaced. Judges are accountable to the public every day in the duties they carry out.”
    Accountability is guaranteed by open courts, reasoned decision-making and appeals, McLachlin said.
    “Chief Justice McLachlin says judges are accountable despite being appointed”, Bill Graveland, Globe and Mail, August 13, 2015

  9. I disagreed with the chief justice then and I disagree now.

    Or maybe she means something different by “accountability”. They definitely aren’t accountable in the same sense that an elected representative is.

    But in any event, it doesn’t matter. I don’t think “unaccountable” is an accusation, as she puts it in the article. I think its a good thing, in the sense that their job is to ensure that justice is done regardless of what public thinks, not to be accountable to the public. I don’t want a judiciary accountable to the public.

  10. Yes, many have resigned. Right back to the 19th century. Though remember in modern times Ontario Justice Landreville, who resigned in the mid 1960s had to fight an almost 10 year court battle to get his pension. That affair was one of the developments that led to the current judicial discipline process at the federal level in the 1970s. The point may raise the question if the current discipline process should also be modified to cover former judges, so that those who resign to avoid sanctions might also be accountable in some way.

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