From the New York Times

March 2, 2005
OP-ED CONTRIBUTOR

Courting the Public By DIRK OLIN

WHEN the Supreme Court resumed its term last week after its winter recess, Chief Justice William H. Rehnquist was once again missing from the bench. His absence, due to illness, has fueled speculation about when he will retire and who will replace him.
Given the state of American politics, the nomination process is almost certain to be tiresome, complete with grandstanding senators, ferocious lobbying groups and obscure pedants. Yet it remains preferable to the alternative used in most states: judicial elections.
 Granted, federal judicial elections (which would require an amendment to the Constitution) have a certain superficial appeal. In a national campaign for the Supreme Court, perhaps Robert Bork could seek electoral redemption for the Senate's rejection of him in 1987. His handlers could fashion a "new Bork" who could be portrayed as "a compassionate strict constructionist." Or maybe Alan Dershowitz could run, emphasizing his defense of O. J. Simpson to A.C.L.U. supporters and courting law-and-order types with his position on torturing suspected terrorists.
Wild imaginings aside, the prospect of Supreme Court elections is appalling because it contradicts a central ideal of the American system of government. We don't elect federal judges, because we want them to be as apolitical as possible. And campaigning for office requires promises and compromises that inevitably corrode the impartiality that judges are supposed to bring to the bench.
So why does America choose almost all of its state and local judges - the ones who make the vast majority of law - by election?
It was not ever thus. Before the early 19th century, mayors and governors appointed nearly every jurist. That eventually devolved into a spoils system, however, and in the Jacksonian era reformers clamored for an elected bench. In 1832 Mississippi became the first state to constitutionally require elections for state judges, and between 1846 and 1912 every state that entered the Union essentially followed suit.
During the 20th century, the pendulum started to swing back. Governors increasingly used expert panels to make selections based on merit, with those choices later facing retention elections. But an election is an election, and an estimated 87 percent of judges today face some sort of periodic plebiscite.
The democratic impulse has fostered too much of a good thing. Charles Geyh, a critic of judicial elections who teaches law at Indiana University, has reviewed public opinion surveys and arrived at a what he calls the "axiom of 80." Roughly 80 percent of the public says it wants judicial elections - but 80 percent don't vote in them, 80 percent can't identify the candidates, and 80 percent believe that elected jurists are influenced by campaign donations.
Until very recently, the Model Code for Judicial Conduct, which sets standards for ethical behavior, combined with a culture of decorum to insulate the bench from the harsher realities of electoral politics. But in recent years, justice has been coarsening. Conservatives and trial lawyers have joined a twilight struggle over polarized visions of the judiciary. The result is that judicial elections around the nation have become much nastier and more expensive.
More concrete costs are also paid. The economists Alex Tabarrok and Eric Helland sampled more than 50,000 tort cases from 1988 to 1996 and found that the average award against an out-of-state corporation is $200,000 to $400,000 higher in states that hold partisan elections for judges as compared with those in which judges are appointed. (Out-of-state companies don't vote.) Similarly, the political scientists Gregory Huber and Sanford Gordon studied Pennsylvania trial judges and found that the closer they were to re-election, the harsher their sentences. These results will please neither conservatives nor liberals.
Of course, elections do provide a greater level of accountability. But more active watchdog groups can have the same effect. Their power to fine, sanction and impeach judges for wrongdoing could bring a strong measure of oversight and accountability to the judiciary without debasing either judges or the system itself.
 Judges should be independent of temporary majorities, which are exactly what elected representatives depend on. And while America's system of justice relies on people, not just laws, it should work to limit overt political influences on the judiciary where possible. Campaign promises, almost by definition, subvert jurisprudence by encouraging prejudice. Judges' loyalty should be to the Constitution and common law, not to their constituents.
States should embrace the federal model. The next nominee to the Supreme Court will endure a klieg-lighted confirmation circus. He or she will also have to confront demands for promises on litmus-test issues like abortion. But senators will accept the usual demurrals, and the absence of a political opponent will prevent a promissory race to the bottom. Even the worst nomination process leaves more room for intellectual honesty than most elections.
Dirk Olin is the national editor of The American Lawyer magazine.