The Political Origins of Judicial Elections

By Driscoll, Amanda; Nelson, Michael J. | Judicature, January/February 2013 | Go to article overview

The Political Origins of Judicial Elections


Driscoll, Amanda, Nelson, Michael J., Judicature


EVIDENCE FROM THE UNITED STATES AND BOLIVIA

Comparative analysis of the adoption and implementation of judicial elections in Bolivia and the U.S. The study identifies four commonalities between the U.S. adoption of judicial elections in the 1800s and the recent Bolivian move to judicial elections.

Judicial elections have been described as a "uniquely American" institution.1 Initially adopted by a handful of states in the mid-1800s, judicial elections quickly diffused across the country as many U.S. states began rewriting their state constitutions. By 1860, 21 of the 30 American states elected their judges.2 Today, the vast majority of judges in the United States must stand for election.3 Yet, while the American legal style is "going global," judicial elections are rarely used to select or retain judges outside of the United States.4 With the adoption of its new constitution in 2009, Bolivia became the first country in the modern world to use judicial elections to select judges for courts with national jurisdiction. On October 16, 2011, Bolivian citizens cast ballots to elect 56 judges to the Bolivian Supreme Court [Tribunal Supremo de Justicia), the Plurinational Constitutional Tribunal [Tribunal Constitucional Plurinational), the Bolivian Agricultural Court [Tribunal Agroambiental), and the high administrative body of the national judiciary, the Bolivian Judicial Council [Consejo de Magistratura). Candidates competed in nonpartisan, nationwide contests in which voters cast a single vote for their preferred candidate for each judicial office.5 The top vote-earning candidates were elected as judges and magistrates and sworn into office on January 3, 2012.

What explains the adoption of judicial elections? In this article, we compare the circumstances under which judicial elections were adopted in the United States and Bolivia. In spite of vast differences in terms of time, institutional arrangements, political history and geographic location, we identify four similarities in the political circumstances and normative debates surrounding their adoption in the two countries.

This research contributes to the literature on judicial elections by leveraging the U.S. and Bolivian experiences to identify a set of common political conditions which may explain the adoption of judicial elections. Our comparative research design provides a contrast by which the general applicability of causal explanations advanced by U.S. scholars might be assessed in cases outside of the context in which they were developed.6 In our comparison of the U.S. and Bolivian cases, we argue that not only are judicial elections no longer a "uniquely American" institution, but the political circumstances that explain the adoption of judicial elections are also not unique. Indeed, the radical differences between the two countries make the commonalities we identify all the more striking. While judicial elections in the United States are so commonplace the question of their adoption is seen as "manifest political destiny," the Bolivian comparison underscores the contentious circumstances surrounding their adoption to highlight their political origins and intended effects.7

In what follows, we introduce our cases and the political climate in which judicial elections were adopted in the United States and Bolivia. We then identify four commonalities between the two cases, drawing explicit comparisons between the two cases. Next, we discuss one prominent difference between the U.S. and Bolivian cases: the level of support that elections had from the legal community. We conclude by offering some directions for future research.

The U.S. Context

Early American history indicates a general skepticism of appointed judges. Indeed, in the Declaration of Independence, Jefferson argues that the King "has made Judges dependent on his Will alone."8 Because colonial judges relied exclusively upon the Crown for their continued tenure, the judiciary had been a faithful agent of the Crown throughout the Revolutionary War. …

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