Sunday, August 6, 2023

In a Democracy Should Politicians Appoint Judges or We The People Elect them?

Ultimately, the debate surrounding the appointment or election of judges involves balancing the principles of democracy, independence of the judiciary, and the need for qualified and impartial judges. 

Different legal systems and societies may adopt different methods based on their specific values and goals. 

Yet what is the fairest, most honest and for the people in a democracy that constantly sermonizes "A Just Society"?

Keeping in mind that A "Just Society" is a term frequently used by politicians and their respective political party affiliates to describe an ideal state of affairs where fairness, equality, and social justice are prioritized and upheld. 

Thus the specific interpretation of a Just Society may vary depending on the political ideology and the context in which it is discussed.

For example, in Canada’s supreme court judges are appointed by the political party in power at any given time and thus in reality are beholding NOT to the electorate yet rather to the political party that appointed them. 

So, it is conceivable that some become political activist judges on behalf of a political party’s ideology and NOT the law or the constitution.

When laws are changed, many diverse, and sometimes unexpected, interests are affected.

Those who are responsible for the change must be alive to these ramifications. Since the interests in question are best understood and explained by those who are affected or would be affected themselves. 

Thus, in my view, would it not be desirable that courts involved in the reform of the law permit the representatives of affected interests to participate in the litigation.

For example, most Canadian courts, at least those of civil jurisdiction, are empowered to permit such participation, whether as a party, intervenor, or amicus curiae. For the most part, however, the procedural rules that grant this power do so in discretionary terms.

There are many examples, especially in the constitutional context, of the generous exercise of this discretion. There have been, on the other hand, some disturbing recent instances of courts refusing to allow important interests to be represented in cases involving novel matters.

Judges are not, for the most part, the initiators of legal ideas. Unless of course, they espouse the ideologies of the political masters that appointed them as Judges! Most judicial innovations are conceived in barristers' craniums (often after intercourse with academic publications).

Procedural practices which deprive the courts of exposure to the ideas of counsel representing all significant points of view with respect to a proposed legal change create a risk of ill-advised reform.

Would it not then be prudent to minimize this risk, by ensuring that the rules of standing should ALWAYS be generous, both as to their terms and as to their application of the laws, not ideologies or opinions.

Directly electing federal and state judges has both pros and cons. 

Here are some points to consider:


Accountability to the public: Elected judges are directly accountable to the voters. This can promote transparency and responsiveness to public interests since judges may be more inclined to rule in accordance with the will of the people to maintain their positions.

Representation and diversity: Direct elections may lead to more diverse benches, as candidates from different backgrounds and perspectives can campaign for judgeships. This could improve the representation of the broader population within the judiciary.

Reduced political bias: Since judges are not appointed by politicians, there may be a lower risk of political bias influencing the selection process. This could potentially lead to fairer decisions and reduced partisanship in the judiciary.

Greater public engagement: Judicial elections can increase public engagement with the legal system, as voters become more invested in understanding the qualifications and positions of the candidates.

Checks on judicial power: Elected judges may be less insulated from public scrutiny, which could serve as a check on the judiciary's power, preventing potential abuses.


Competence and qualifications: Judicial elections may prioritize popularity over qualifications, leading to less experienced or unqualified candidates winning elections. This could result in less competent judges on the bench.

Influence of money and special interests: Judicial campaigns can be expensive, and candidates may rely on donations from individuals or groups with vested interests in the legal system. This may raise concerns about undue influence and corruption.

The politicization of the judiciary: Elections can lead to judicial candidates making campaign promises or catering to popular opinions, which could compromise the impartiality and independence of the judiciary.

Short-term focus: Elected judges may be inclined to make decisions to please their base and secure re-election, potentially sacrificing long-term justice and the protection of minority rights.

Lack of public awareness: Many voters may not be well-informed about judicial candidates and their qualifications, leading to decisions based on name recognition or other superficial factors.

Implications for unpopular decisions: Judges might be reluctant to make unpopular but necessary decisions if they fear losing their position in the next election.

You decide!


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Thanks for your thoughts, comments and opinions, will be in touch. Peter Clarke