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When (and Why) We Vote for Judges

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Federal judges enjoy lifetime appointments under our system of government, but that's not the case at the state and local levels.

In California, as with most other states, judges are subject to voter approval. Even though the vast majority of judges are appointed by the governor, they have term limits and at some point must face an election if they want to keep their seats.

California courts are divided into three levels: the superior courts, Courts of Appeal, and the state Supreme Court. When and how judges come to the bench varies accordingly.

Supreme Court and Courts of Appeal
Justices of the California Supreme Court and Courts of Appeal are first appointed by the governor. However, at the very next general election they must be confirmed by the voters. They then generally serve a term of 12 years before coming up for re-election. If the previous judge vacates the office in the middle of a term, the new judge serves out only the uncompleted portion before facing election again.

At this level, justices appear on the ballot uncontested, which means voters have only two options: to re-elect or not. It's a retention vote. If the voters reject the judge, then the governor will appoint a new one, and so on.

Superior Court
Superior courts -- also called trial courts -- follow a different system. Judges at this level serve staggered six-year terms. That means every two years a third of them come up for re-election.

Superior court judges earn their seat by appointment or election depending on the circumstances.

When a judge retires in the middle of a term, his or her seat becomes vacant. In these cases, the governor will appoint a replacement.

When a judge is due for re-election, another eligible candidate may file election papers and contest her seat. In this case, the sitting judge is the incumbent and appears along with all other candidates on the ballot.

If a candidate files election papers, but the sitting judge decides to retire, it is considered an open seat race. There is no incumbent, and the decision rests with the voters instead of the governor. This scenario often occurs by design. A judge can pick her retirement date strategically to force a popular vote, blocking the governor from appointing a replacement.

Hundreds of judges are up for re-election every two years, but unless someone directly contests their seat or a retirement prompts an open seat race, the incumbents are automatically re-elected for another term. This is why only a handful of the hundreds of offices will appear on the ballot.

Indeed, during the 1996, 1998, and 2000 election cycles, only 6 to 9 percent of judicial seats were contested. That means of the 525 judges who were up for re-election in each of those years, only 35 to 50 seats appeared on ballots statewide. Even fewer of these involved an incumbent, making it clear that under our current system judges are rarely pushed out or brought in through popular elections.

The system hasn't always been set up this way.

During the first few decades after independence, state and federal judges alike had enjoyed lifetime appointments. Interestingly enough, it was the introduction of the now time-honored power of "judicial review" that led to a political backlash and the demand for term limits. Courts until 1803 were not explicitly empowered to declare laws unconstitutional, but the Supreme Court ruling in Marbury v. Madison, 5 U.S. 137, enshrined this "judicial review" as a key power of the courts.

Many, including Thomas Jefferson, believed this move tipped the balance of power in favor of a new judicial elite. Jefferson advocated for six-year term limits and by mid-century, beginning with New York, many states were using these and other provisions to curtail judicial power and make judges answerable to the electorate. California was one of them.

When California gained statehood in 1849, this new electoral system was written directly into its constitution (just as it would be in every other state to enter the Union since 1846). All judges here made it to the bench through popular -- and very political -- elections. Up through the end of the 1800s and into the early 1900s, they could run as Democrat or Republican and openly espouse the party platform.

The public was not too happy with this arrangement, either. Many observers blamed judges' open and blatantly political campaigning for eroding the public's trust in a fair and impartial judiciary.

Reforms in the early 20th century led to the system as we know it today, with its hybrid model of appointments and elections. Partisan politics were barred and contested races were abandoned for the most part in favor of retention elections. A merit system was set up to ensure judges were assessed on their performance and abilities rather than their political views. The governor now has an advisor to recommend judicial appointments, and any candidate under consideration goes through a rigorous screening process by a committee of the State Bar of California.

This system represents a compromise of ideals. On the one hand, judges in a democratic society should be answerable to the people in some way, and so we have popular elections. On the other hand, judicial impartiality is paramount to our notion of justice in the United States, and so judges should be sheltered from partisan politics. To the extent they do not have to campaign frequently and are not allowed to participate in political activities, this impartiality -- or the appearance of it -- might be maintained.

Why Two Systems for California
The difference in how we select judges at the state and trial court levels may have been due to a quirk of the ballot. Reformers in 1934 wanted to amend the state constitution to ensure that all judges would be appointed by the governor and would subsequently run unopposed at re-election time (by making them subject only to a retention vote). However, the changes were pitched as two separate proposals and got two different results.

The proposal involving Supreme Court and Courts of Appeal justices appeared as part of a popular anti-crime package on the 1934 ballot. A similar proposal for trial court judges appeared immediately after a prohibition initiative on the same ballot. The first was approved and the second rejected by voters. Thus, the way we select judges for our trial courts borrows from the old system of popular elections, while in the higher courts judges are appointed in much the way they are in the federal court system.

Still, democracy is a marketplace of ideas, and the more engaged the citizenry is, the more restless our government appears.

In 2000, Assemblyman Joe Nation, (D-San Rafael), challenged the way we elect judges with yet another proposed constitutional amendment.

Nation was troubled by the increasing cost of campaigning in superior court races. With more money involved and more open campaigning, the influence of partisan politics seemed to be creeping back into the system. Nation suggested that we go back to appointing superior court judges, too, in a sense finally bringing the two systems together as the way reformers in 1934 had intended.

However, the bill lacked support and died in committee. Before it did, the state's Judicial Council issued a report analyzing both the current system and Nation's proposed changes. That report offers further insight and historical perspective into why we elect judges the way we do, along with several potential alternatives (you can read it here). Much of this history comes from it.

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