Judges for Sale

Article excerpt

THE SOURCE: "Economic Crisis and the Rise of Judicial Elections and Judicial Review" by Jed Handelsman Shugerman, in Harvard Law Review, March 2010.

IT'S ONE OF THE UGLIEST warts on the U.S. body politic: About 90 percent of America's state judges are chosen in elections. Inevitably, some of them wander into the political swamps. One successful candidate for the West Virginia Supreme Court in the 1990s accepted $3 million in contributions from a corporate executive seeking to overturn a multimillion-dollar verdict. Elected magistrates also tend to be reluctant to enforce principles that antagonize the voting public. The irony is that when it swept the nation in the 19th century, the movement to make state judgeships elected positions was seen as a way to create a more independent judiciary.

The movement gained strength after the Panics of 1837 and 1839 sent many heavily indebted state governments reeling and exposed the often corrupt ways of state legislatures at a time when states were spending heavily on canals, roads, and other "internal improvements." Populists were already clamoring to subject judges to the people's will, according to Jed Handelsman Shugerman, a professor at Harvard Law School, but now they were joined by moderates and conservatives, who wanted to make judges independent of the legislatures in order to "embolden [them] and legitimize judicial review by connecting them to 'the people.'" New York led the way in 1846, when a state constitutional convention approved a switch from appointed to elected judgeships. …