| I’m about to talk about forces I don’t fully understand, so I’m going to tread lightly. On Sunday, Mexico held judicial elections for the first time in its history. Voters elected over 3,000 judicial officials—from Supreme Court justices all the way down to local district magistrates.
In my view, judicial elections are an incredibly bad idea. That opinion surprises some people, given that I like “democracy,” believe judges to be mere politicians in robes, and regularly write about how the judicial appointment and confirmation process is broken. If judges are political figures with incredible power to shape policy outcomes, why shouldn’t they be elected by the people they rule over?
Well, I’ve got two reasons: Judges are there to do unpopular things, and voters unduly punish leniency and mercy.
When functioning properly, the judiciary is supposed to be a check on the popular will. It’s supposed to be a defender of minority rights that would otherwise get trampled by broad majorities. It’s supposed to equalize the playing field between the powerful and the powerless, and reach outcomes that are not predetermined by whichever side has the most money and influence to throw around.
I’m not saying that the judiciary actually functions like that, only that it should. And popular elections do not bring us any closer to that “more perfect” goal. Think about how much money Elon Musk threw into the state Supreme Court election in Wisconsin this year. He lost, but he had an opportunity to play the game because of judicial elections.
My second problem with judicial elections is their impact on criminal justice reform. Put simply: Voters regularly punish judges who show leniency in criminal sentencing, especially toward Black defendants. Elected judges are thus incentivized to be “hanging judges,” handing out the harshest criminal penalties in the most-high-profile cases so that none of their rulings come back to bite them in the ass during election season. It only takes one mercifully treated former prisoner to reenter society and kill again to ruin a judge’s entire career, so they go out of their way to never let that happen. Judicial elections encourage leniency toward white boy rapists who were caught in (what they describe as) “boys will be boys” situations, while encouraging draconian punishments for Black teenagers who steal cars.
Of course, I’ve been talking about the judicial election system in the United States. In Mexico, things may be different in ways I don’t fully appreciate. What little reading I’ve done on the matter suggests that corruption is rampant in the Mexican judiciary (though, again, I don’t know if those reports are coming from Americans unfamiliar with just how much Harland Crow has paid for his Supreme Court). The Mexican government defends judicial elections as a progressive reform aimed at cutting the power of elected leaders who hand out judicial seats as patronage positions.
Turnout for Mexico’s judicial elections was just 14 percent, however. And that is my last problem with judicial elections: The people don’t actually care. Judges don’t go on TV and hold campaign rallies and make wild promises about how the taps will flow with milk and honey if they are elected. Voters don’t know who these judges are and are not particularly motivated to find out.
In my perfect world, people should not be asked to vote for the judiciary. People should be asked to care about the judiciary when they’re voting for the popular branches of government. |