Why we should keep judicial elections

l There is no proof that elected judges are for sale. Critics of judicial elections frequently point to Caperton v. Massey as an example of how judges can be “bought.” This West Virginia case, in which a judge supported by the Massey coal company won election and then did not recuse himself regarding the company’s appeal of a $50 million verdict, includes several facts that are routinely ignored. A news release from the West Virginia Court of Appeals noted that Chief Justice Brent Benjamin — the judge who allegedly benefited from millions of dollars in campaign ads paid for by the chief executive of Massey Energy — voted against Massey Energy or its subsidiaries 81.6 percent of the time, including in the Caperton case. These votes “cost” Massey Energy approximately $317 million. In contrast, Massey “benefited” from Benjamin’s votes 18.4 percent of the time, for a total sum of about $53.5 million. So, was Benjamin’s vote “bought”? The numbers are unconvincing. More generally, there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.

Little has also been said about the biases in the systems with which critics would like to replace elections. No method is perfect. But, unlike the “merit” commission process most frequently offered as an alternative — in which judges are selected by the governor off a list formulated by political and legal elites and then retain their jobs simply by receiving a majority of “Yes” votes in an uncompetitive election — elections are at least transparent processes open to the public.

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In the debate so far, many of the arguments have been based on rhetoric, not fact. It is important to remember that efforts to maximize judicial “independence” from the electorate can also maximize independence from the law and the Constitution. Without a mechanism for effectively holding judges accountable, judges are free to “go rogue” and make decisions based solely on their political views. Is that better than a campaign season every now and then?

Chris W. Bonneau is an associate professor of political science at the University of Pittsburgh and co-author, with Melinda Gan Hall, of the book “In Defense of Judicial Elections.”