Many critics, including on this blog, have argued for abolishing judicial elections, partly on the grounds that judicial elections open the door to judicial corruption. These critics worry that elected judges cannot apply the law neutrally because they will be influenced by those who got them to their position and by the desire to stay there. But these risks are both exaggerated and fairy easy to control. Judicial elections actually promote legitimacy and responsiveness, and reduce opportunities for political gamesmanship. Ultimately, judicial elections can help curb judicial corruption.
There is a fear that campaign contributions and public support will sway—or even corrupt–elected judges: “Vote for me or donate to my campaign and I’ll make sure to rule in your company’s favor.” But this risk is not unique to judicial elections, and critics fail to make the case for why judicial candidates are more corruptible than legislative candidates. In fact, judicial elections promote greater transparency in an otherwise opaque branch, breaking down barriers between the judiciary and the electorate and promoting citizen interest in the legal system. This increase in the overall engagement of the citizenry in the laws and legal processes of their state helps create greater trust in the judicial branch. Judges will not want to break that trust, first because of their general commitment to notions of judicially neutrality and, second, because they will want to be reelected. As a result, it is less likely that elected judges will be corrupt because they know their decisions being watched and considered by the electorate. Moreover, critics should consider the alternatives that would replace elections: bias and political favor likely color judicial appointments system more than judicial elections. It is often unclear what motivates an executive, like a governor, to appoint one judge over another. In fact, those decisions are often influenced by political interest groups lobbying the executives in charge. Ultimately, an appointments process is much more opaque compared to elections.
Aside from democratic accountability, states have ways to ensure that judges, whether elected or appointed, do not become corrupted. Some states have judicial review commissions, made up of elected legislators or appointed officials, that investigate and review complaints against judges. These commissions have the power to remove judges from office in situations where it has been demonstrated that judges have abused their power. This type of commission not only allows direct action in the face of judicial corruption, but keeps the branches in communication with one another: while the judiciary should be independent in its decision-making, it is nevertheless productive to maintain a healthy system of checks and balances to make sure that no branch is steering too far off course. Transparency International has also outlined several practices that can help combat judicial corruption, including a random process for allocating cases to judges and recording court proceedings. Notably, the organization does not advocate for the elimination of judicial elections.
Given these factors, the risks of judicial corruption are not sufficient to abolish judicial elections. Indeed, elections actually diminish the likelihood of judges becoming corrupt. Moreover, there are other good reasons to support judicial elections—including the promotion of democracy, public engagement with the judicial process, and ensuring that those who create state laws in a common law system are responsible and accountable to the people—which outweigh the concerns about the potentially corrupting effects of campaign donations to judicial candidates.