Elected vs. Appointed?

Shugerman explores the history of judicial selection in the U.S.

Shugerman explores the history of

judicial selection in the U.S.

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Credit: David Pohl

When Assistant Professor Jed Handelsman Shugerman was a law student at Yale, former Tennessee Supreme Court Justice Penny White spoke as a guest in one of his classes. White was a pro-death penalty Democrat who had voted in one case to overturn a death sentence. When she ran to keep her seat, conservative groups rallied against her. She ultimately lost. “Her story raised basic questions for me as a law student about the relationship between law and politics,” Shugerman says now. His interest in the subject couldn’t be more relevant. Today, about 90 percent of state judges must run for office, and the elections have become increasingly expensive and nasty. Shugerman provides historical perspective on judicial elections and other methods of judicial selection in his new book, “The People’s Courts: Pursuing Judicial Independence in America” (Harvard, 2012).

Seven years in the making, “The People’s Courts” sent Shugerman digging through archives around the country. His book is a thorough account of the turning points, political and economic forces, corrupt power struggles, and intellectual thought that have shaped how Americans choose their state judges, from Colonial times to the present.

“I began the book feeling horrified by American judicial elections,” Shugerman says. When his research revealed that a significant impetus behind them was to correct for the corruption and partisanship of judicial appointments, he saw that judicial elections had a good-faith logic in their 19th-century context. From the republic’s earliest days, Shugerman notes, the challenge of judicial selection has been to balance judicial accountability, which demands that judges bend to popular and political pressures, and judicial independence, which demands judicial allegiance to the rule of law. As he mined the historical record, he found that judicial election advocates vied for popular support for their cause by framing it primarily in terms of judicial independence.

This was a theme that was repeated throughout American history, Shugerman found, whether the method of judicial selection being advocated was elections or another approach. “That judges should be separate from politics, that judges should be doing something other than voting with public opinion or voting because of partisanship—that core idea of judicial independence animates the story all the way through,” he says. “It was a real surprise to me. I thought I would see judicial accountability as the rallying cry of reformers, in part because I think, over the last couple of years, we’ve seen more demand for judicial accountability.” At the same time, he found that the economic interests of various groups and the coalitions they created were also a driving force behind judicial selection reform movements throughout American history.

Shugerman discovered that at first the plan to create a more independent judiciary through popular elections worked. The first generation of elected judges in the early 19th century exercised the power of judicial review far more often than their predecessors did. Perhaps ironically, these democratically elected judges were also the first to criticize democratic excesses and to argue from a countermajoritarian perspective.

shugerman_coverShugerman’s legal-historian colleagues emphasize the groundbreaking nature of his explorations into judicial elections. But his book is not limited to elections. “The People’s Courts” demonstrates that, over 250 years, various judicial selection methods have arisen; succumbed to inevitable corruption, partisanship or economic pressures; and fallen, in largely cyclical fashion.

Of all the methods he looks at, Shugerman claims that merit selection, which involves vetting by a panel of professionals and executive appointment to a first term, followed by retention elections, has yielded the most judicial independence. It is currently employed in about 20 states. But he warns that it, too, may be adversely affected by the excessive campaign spending that preceded and may now be accelerated indirectly by Citizens United.

Shugerman, who joined the HLS faculty in 2005, holds a Ph.D. in history as well as a J.D. (His book grew from his dissertation, which received the Cromwell Prize of the American Society for Legal History in 2009.) He calls Harvard “a hotbed for legal history” and is grateful to colleagues whose comments on his work helped him refine his arguments. For his next project, he is taking on the history of America’s federal prosecutors, particularly how the tension between partisanship and professional independence has played out over time. “That project,” he says, “might be called ‘The People’s Prosecutors.’”


A Judge’s perspective

A Judge’s perspective

Justice Marshall looks at issues of judicial independence

Shugerman’s book, “The People’s Courts,” is already being put to good use. Margaret Marshall, the recently retired chief justice of the Massachusetts Supreme Judicial Court, now a senior research fellow and lecturer at HLS, used it this spring to introduce her students to the history of judicial elections in her seminar on judicial independence.

Electing a judge is very different from electing a legislator or executive, because judges must be impartial, notes Marshall, who is author of the majority opinion in the 2004 decision that made Massachusetts the first state to recognize the marriages of same-sex couples. Politicians make campaign promises all the time, and the people can vote them out if they don’t deliver. “The challenge when it comes to judicial elections,” Marshall says, “is that judging in the postelection role is a commitment to the law. You cannot say, ‘If elected, I will always impose a death penalty in a case where the jury can conclude that there was a murder,’ or ‘I will never allow a class action.’ That’s inconsistent with your role as a judge. So, there’s a real tension there. Where that line is drawn on what judges can say during an election campaign, what the confinement can be, is a very difficult issue.” Students in Marshall’s course looked at what the law says about campaign speech for state judges, including campaign financing and issues related to Citizens United.

Marshall never faced a judicial election herself (judges in Massachusetts are appointed for a single term, lasting until they turn 70), but her interest in the topic comes from her deep concern for justice. “From the people’s point of view, justice in America is delivered first and foremost through the state courts,” she says. Factors ranging from the decimation of state court budgets to the politicization of state judicial elections by unprecedented sums of special interest funding to the loosening of ethical strictures on judicial campaign speech are, she says, “putting that delivery of justice at risk.” Shugerman’s book, she says, “is a brilliant description that we all need to know about to understand what led us to this particular place. This book could not be more timely.”