THIS is Why Judges Shouldn’t be Elected

Several months ago, the Indiana Supreme Court had to decide a case involving homeowners who shot at police who were entering their home. It turned out that the entry was in error and the homeowners were acting in what they said was self-defense; nevertheless, the Court ruled that the use of weapons to repel the police entry was improper. [SEE BELOW FOR CORRECTED DESCRIPTION OF WHAT HAPPENED.]

You probably remember the ensuing uproar. Gun rights and “your home is your castle” purists were outraged, the legislature waded in with legislation to overturn the ruling, and a gnashing of teeth was heard throughout the land.

Now, opinionated snark that I am, I really didn’t have, as they say, a dog in that fight. I could see the logic of the reasoning that generated the opinion, and I could also understand the blowback. But here’s the thing. Judge David, who authored the decision, is up for retention this election, and the Tea Partiers are out for his blood.

There’s a reason the Founding Fathers made federal judgeships appointive rather than elective. The idea was that legislators and members of the Executive branch would have reason to respond to public sentiment–to what the Founders called “the passions of the majority.” The checks and balances of the government they were constructing needed a mechanism focused upon the rule of law–judges whose duty was to the Constitution, not the electorate. Shielding judges from electoral pressures was meant to insure that they would decide cases based upon their reading of the applicable law, rather than the electoral consequences of any particular decision.

The decision to insulate the judiciary was certainly not a guarantee that every decision would be correct. That wasn’t the point. The idea was that–freed of the need to pander to popular opinion–judges would produce decisions that were intellectually honest, that reflected their best reading of the case and the law. The judicial branch would thus act as a check on the majoritarianism of the other two branches.

When the states established their own courts, however, they didn’t always follow the federal model.

When judges are on the ballot, bad things happen. They have to raise money to run for office, and that money often comes from people who have business before the courts. (In West Virginia, a judge who had received $3 million dollars from the owner of a coal mine refused to recuse himself in a case against that owner–only when the Supreme Court stepped in did he step down.) They have to be wary of interest groups that may mobilize to defeat them if they rule in ways inimical to the desires of those groups. (In Iowa, right-wing Christian organizations were able to defeat two state Supreme Court Justices who had ruled that the Iowa Constitution required recognition of same-sex marriage.)

Even in “semi” elections like Indiana’s, where all that appears on the ballot is a retention question, asking voters to say yea or nay to the continued service of a judge makes members of the judiciary vulnerable to small but passionate interest groups like the Tea Party that’s gunning for Judge David. (No pun intended.)

Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions. Because that’s the case, small numbers of zealots can mount successful campaigns to defeat a judge they dislike. Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require.

That isn’t the system the Founders established, and it isn’t a system capable of upholding the rule of law against the passions of the mob.

NOTE: Here is Jerry Torr’s message.

“While I don’t always agree with your opinions, I do appreciate that you usually have your facts straight.  Thus I was surpised to read the opening paragraph of your blog today and your description of the case that has caused the uproar over my friend Justice David.
In the Barnes case, there were no shots fired at police – in fact there were not even any weapons involved.  Further, few actually argue that the police entry under the particular facts was in error.  The police were responding to a 9-1-1 call from Barnes’ wife, and when they arrived he was outside the apartment.  After some discussion (argument) with the responding officer, Barnes then entered the apartment and tried to close the door on the officer who was attempting to follow him in.  When the officer forced his way in, Barnes shoved him against the wall.  He was subsequently charged with battery on a police officer (as well he should have been under the circumstances).
As you know I am not a lawyer; however, it seems clear to me that the Court could easily have found that the entry was proper due to the exigent circumstances of the 9-1-1 call, and no one I know disagrees that the result was correct for the particular facts of the case.  The problem is that the majority went out of its way to go much further than it needed to in order to decide this particular case, and bascially threw out the Fourth Amendment in the process by saying that reasonable force is NEVER appropriate, under any circumstance, to prevent an illegal entry by a police officer (perhaps even if he is trying to force his way in to my home to harm or kill me because he mistakenly believes I’m having an affair with his wife).  The ruling basically turned the Fourth Amendment on its head and created a serious conflict between the Court’s ruling and the Castle Doctrine statute that we had passed just a few years earlier.  That’s why legislators felt we had to respond with statutory changes.
Again, I take no issue with your argument about appointed judges, but I was really surprised to read your description of the Barnes case in the first paragraph.  Hope you will take this in the constructive manner that it’s intended.”


  1. Not sure I agree that appointing state judges would “fix” anything. SCotUS on down the Federal courts line is marked by having to pass ideological, not on jurisprudential acumen muster during the approval process after nomination. The whole thing is skewed by bias.

  2. Good article.

    Most voters not only have no idea what decisions individual judges have handed down, but most voters have no clue what the voting records of the legislators they are voting for are OR have exposed themselves to dissenting opinions, ideas or ways of looking at each issue. People basically make voting decisions over the same half dozen media-focused, sound bite issues every couple of years.

    As for the “Tea Party” being small … I suspect that at least 20% or more of the people consider themselves “Tea Party” or supporters of it. Politics often plays to much smaller groups at the expense of others.

    When there is talk about “the system the Founders established” I think it also fair that the Founders, if alive today, probably would frown upon judges allowing people to have half of their earnings stolen by the government or to be stopped, detained and have their papers demanded by armed government agents for things like not wearing their seat belt in a vehicle nor would they likely approve of ruining people’s lives for possessing (a subjective opinion of) the wrong plant flowers.

  3. I remember two judicial votes in Illinois – in one, every bar association, every newspaper and every commentator agreed that the judge was incompetent and needed to be removed — he was retained. In the other, a judge had the audacity to allow trial lawyers to sue big corporations for damages – he was defeated.

    I am certain the “starve the trial lawyers, starve the Democrats” faction was happy with the second outcome, but I am not certain that either of those served the people of Illinois.

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