On November 6th, Texas Court of Criminal Appeals Judge Sharon Keller was re-elected despite previously facing removal from the bench over a case in which she refused an after-hours appeal by a death row inmate who was executed later that night.
The election of judges based on popular vote is not unique to Texas, though it is one of only 8 states that choose judges for its highest courts with partisan elections.
But 39 states elect at least some judges by popular vote. Since this approach is implemented in most of the United States, it is important to evaluate whether picking judges this way is a good idea. Proponents of electing judges argue that it is more democratic than having them appointed, and that it makes judges directly accountable to the people. But, especially for death penalty cases which as high profile crimes are usually deeply politicized to begin with, how fair and accurate can judges be when they are beholden, not just to the law, but also to voters?
Electing judges by popular vote makes them politicians, with all that entails: campaigning, fundraising, partisan loyalties, etc. Concerns about the practice of electing judges have been raised since the 1990s when Stephen B. Bright, President of the Southern Center for Human Rights published a groundbreaking study in 1995 focusing on the prominence of the death penalty in the election, retention and promotion of judges. The report called “for open and honest discussion of the political pressures on judges who must stand for election and retention.”
Retired Supreme Court Justice Sandra Day O’Connor has taken up the call, arguing that “what you get these days is large campaign contributions when you have elections. And I don’t think we should have any cash in our courtrooms.” She created the O’Connor Advisory Committee to encourage states to abandon direct elections. Her plan, which seeks to “balance the need for fair and impartial courts with the need for public accountability and transparency,” calls for appointment of judges, followed by non-partisan retention elections.
Across the country, judges campaign based on their conviction rates. Electing judges based on their ability to conform to demand for the death penalty can corrupt the motives of the people we count on to place the rule of law above political self-interest. When emotions are high, and life and death are at stake, more partisan politics is probably the last thing we need.