Alabama: Why Judges Shouldn’t Be Elected

He’s baaack!

Roy Moore, the infamous “Ten Commandments” theocrat, is serving a second stint as Alabama’s chief justice. Moore was first elected to that position in 2000, but was removed after refusing to move a Ten Commandments monument he had installed at the entrance to the courthouse. Carved into a five ton boulder. In a July 2003 ruling, the appeals court compared Moore’s actions to the

“position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.

“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.

In November 2003, the state ethics panel unanimously voted to remove Moore from the bench. He was reelected in 2012, narrowly defeating a candidate who didn’t join the race until August after Democrats disqualified their original candidate. (What was that old saying?–you can’t beat something with nothing.) When it became apparent that he’d won, he told supporters

“Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Now, Moore has told the state’s probate judges–who evidently issue marriage licenses in Alabama– to ignore a federal judge’s ruling that same-sex marriages could proceed, and a majority of them have been complying.

Interestingly, Alabama does not require probate judges to have any sort of legal education. It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections.

The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. Congress and the Executive Branch are supposed to answer to the voters; courts of law are supposed to answer to the Constitution.

In best-case scenarios, judicial elections give rise to the appearance of impropriety– did campaign contributions influence the administration of justice? In the worst-case scenarios, judicial elections give you a Roy Moore.


  1. But I have to ask; who would Daniels and Pence put on the bench given the power to appoint judges?

  2. It’s a pickle. Judges picked by partisan politicians or elected by ill informed voters. Back in the simple times it was a smaller pickle as conducting fair trials was something that many lawyers were adequately experienced in.

    Now we expect more from judges due to the complexity of our society and more and more lawyers specialize in non courtroom specialties. Plus judges need to be experienced, read older, and many are out of touch with our rapidly changing culture.

    So, it’s not a great situation.

    Would having them appointed somehow by the bar be worse or better?

    I don’t know.

  3. The problem is it’s hard to squeeze politics out of the selection process. If anyone knows the behind-the-doors maneuvering for Indiana Supreme Court appointments, that person would know how political that process is. And it’s politics all done behind closed doors.

    Although the federal system is cited as some ideal, federal judges can be even more political than those in the state court system. Local federal judges tend to be very favorable toward the powerful, politically-connected law firms in town, surprisingly more so than state court judges, which is why those big law firms transfer cases to federal court whenever possible. There is a lot of political maneuvering to get appointed to the federal bench, and to get to the next level, even more political pull is needed. A federal district court wanting to get to the 7th Circuit, may find his or her wings if the judge rules against politically-powerful Barnes & Thornburg, for example.

    I’m not sure what the answer. All selection systems for judge seem to be terrible.

  4. “The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. ”

    Whoa, the Constitution explicitly did NOT make the courts independent. Only the Supreme Court is independent.

    Every court outside the Supreme Court is an inferior court subject to regulation by the Legislative.

    Article III.

    Section. 1.

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

    I also have to disagree with you that a court is the “Rule of Law.” The Judicial Branch is barely a branch and certainly not co-equal with the other two. It is not a policy-making body, and its pronouncements should be narrow and limited. Policy matters of a national scale are not to be legislated from the bench and are to be left to the People to determine what sort of country they want.

  5. Whoa– I think that your point about what the Constitution not making the courts independent is rather moot. The framers did not live in the same dichotomous state that we currently live in. Political parties or factions (as they were called then) were precisely what James Madison warned against. (Federalist #10) For this very reason! It was never the framers intention for the government to become partisan.

    The courts no matter the level should be a non-partisan entity. I would argue that the Judicial branch (Supreme Court specifically) has MORE power than the other two branches, BUT (and it’s an extremely large but) that power is restricted in how cases are presented to them. The Supreme Court can pick and choose which cases they decide to address. Obviously the case has to be brought to them in the first place, but ultimately they can decide to not take the case at all. While policies may not originate with the Judicial branch they most certainly end with the judicial branch which is arguably more important.

    I believe that Roy Moore is a case and point why judges shouldn’t be elected in partisan primaries. While I think that appointment through the state executive branches is probably a rather slippery slope as well, it may the lessor of two evils here. (I say that with total fear of what the Republican controlled state government of Indiana would select) However, we know that we don’t live in an informed citizenry state (sad and scary in itself). The courts need to be a place where parties can have a fair trial, and having candidates who are loyal to party politics does not create a environment for a fair trail.

  6. Jessica:

    Policy is a change in direction. Courts can only read the map, not change the course. Is Judge Moore wrong? Is gay marriage in the Constitution? It doesn’t do for a court to say America should allow it; that’s for the Legislature. All a court can say is whether America has already allowed it in a foundational document. Judge Moore can’t find it. Can you?

    Gay marriage should be enacted through amendment, not by legal violence and by destroying all remaining restraint of the judicial branch to get to a goal they really want.

  7. Slavery and different cultural ancestries embedded discrimination deep into the America psyche. Discrimination against African-Americans, for example, might never have been halted by popular elections in states that had permitted slavery.

    Those pesky constitutional provisions of “equal protection” and “due process” have given poor folks, racial and cultural minorities, and everyone else an equal chance at justice via the courts. We are a long way from perfect, but we’ve made tremendous progress inch by inch and occasionally by a mile.

    I’m thankful for all those pioneers who paved the path toward a more equal and just society, but sometimes we lose ground as with voter suppression laws and all sorts of attacks on women’s rights. To paraphrase an old axiom, vigilance and activism are the eternal prices of liberty and justice.

  8. Paul’s point about the issue of whether judges should be appointed or elected is the same for some other areas. With school boards, for example, it’s not uncommon for people who have elected school boards to wish that that they had appointed boards, and for people with appointed boards to wish they had elected boards, as if the process will be squeaky clean. The skunks seem to worm their way into the system, whatever process you use.

    In the case of Mr. Moore, listening to their rationale, It’s a totally different experience. I read some incredible stuff from the KKK yesterday, and their perspectives of reality are the same as they were 150 years ago, and reflected in the rationale of good old boy Moore. One wonders when, if ever, they will climb out of that mindset. It’s a very different reality.

  9. When your barrel is full of bad apples, what difference does it make if you pick one by vote of by fiat? Get out your lantern, Diogenes. We’re going to need it again!

  10. I would argue that the supreme law of the land is the Constitution, and intelligent, experienced and ethical people are needed to protect its bedrock principles from being eroded. That is the key function of an independent judiciary. Just because the Constitution only establishes the Supreme Court of the United States doesn’t mean the judiciary is not co-equal. It serves a critical function. And, those lower courts, they too are charged with protecting the Constitution against partisan theocratic monkey business. Let us all take a moment to wish mightily that Roy Moore and his ilk do not continue to impose small-minded decisions that are clearly illegal on all of us.

  11. I agree completely with Paul Ogden, but don’t have any answer as to what’s to be done to restore at least some chance for justice for litigants who aren’t wealthy, powerful or connected politically or otherwise. There was a recent article that pointed out that even at the Supreme Court level, there are just 8 law firms which are mostly allowed to win. At least with elected judges, there’s some chance for a voice.

  12. @Natacha, I am afraid you might be a bit naive. With elected judges come campaign donations. A few years ago, the Supreme Court of the US ruled that a state supreme court justice should have recused himself from a case after his election to that court was financed to a large extent by a party who had a case before the court. Not surprisingly, the justice ruled in favor of the party that provided the financial support to his candidacy (and by so doing, reversed a multi-million dollar verdict against that party). Money corrupts politics—in the sense that it destroys our confidence that money isn’t playing a role in the decisions or legal outcomes.

    There’s no doubt that judicial appointments are political. They are far from perfect. Judicial elections are also far from perfect. But I lean in favor of appointed judges for a pretty simple reason. The Average Joe or Jane appearing before an appointed judge in a divorce case doesn’t have to worry if the opposing attorney wrote a bigger campaign check.

  13. Campaign checks can be disclosed and can be verified through public filings. Interlocking power networks are never public, and given that real power is wielded through giving a job to a friend’s relative, approving club acceptance for a friend or a friend of a friend, recommending a board appointment upon the request of the network, making a word on behalf of a friend to a membership or selection committee, and for millions of other shady ways power manifests itself, appointment power is far murkier and less trustworthy than elections.

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