Jed Shugerman is a brilliant young historian. Amazing how going back to the record lifts the cloud of myth. One is that we freed judges from politics by making them appointed rather than elected. That is certainly the received wisdom. But Harvard law prof Shugerman looks back to the 19th century and reports that people elected judges in order to insulate them from interference by governors and legislators.
So when we lament – as I do – the successful campaign to remove Iowa Supreme court judges who voted for same sex marriage, it is good to remember that the electorate is only one pressure group of many – as we are seeing in the stalemate in New Jersey over nominees to the Supreme Court – the liberal character of which Gov. Chris Christie unashamedly wants to change. – GWC
Judicial Independence, But From What? – Jotwell: Legal History:
by Stuart Banner
If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.
No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.
In The People’s Courts, Shugerman shows that this isn’t true at all.
h/t John Steele – Legal Ethics Forum