When the United States ambassador to Mexico, Ken Salazar, spoke out about the judicial reform that Morena is promoting in Congress, the president-elect, Claudia Sheinbaum, responded to the diplomat with a brief message. “Very relevant information: In 43 of the 50 states of the United States of America, judges are elected by popular vote,” wrote Sheinbaum, who will take the reins of the country on October 1. Like much of what is written on social media, the message The future president’s statement left out context and nuances regarding the popular election of judges in the northern neighbor. The federalist system to which Sheinbaum refers is a complex method that gives a lot of room to the 50 states. Experts are concerned that private money affects the impartiality of judges in highly polarized environments.
First, something that Sheinbaum left out. The United States has a dual judicial system. The election of judges is only done at the state level. None of the judges in the federal courts have reached the bench by popular vote. These are the most famous faces of the American system and those who preside over the most talked about cases in the media. The judges who repealed the right to abortion in 2022, decide whether Google engages in monopolistic practices, mediate in disputes between Washington and the States or decide whether Joaquín El Chapo Whether or not Guzmán will ever walk the streets again were all chosen by a U.S. president and confirmed in office by a special Senate committee. That’s how it works for Supreme Court justices, circuit court judges, and district and lower court judges, who serve for life once they are approved by Congress.
Federal courts hear primarily drug-related cases, immigration, constitutional issues, and securities issues. The vast majority, 95 percent, of cases heard in U.S. courts are handled by local systems. These decide criminal matters, family law, contracts, private property, and tort cases, to name a few. It is these courtrooms, staffed by 30,000 local judges, that resolve some 100 million cases annually, according to the National Bar Association (ABA).
Elections for judges are held in the local system, but the cases vary from state to state. Governors in 27 states, including California, Massachusetts, Maine and New Jersey, select the vacancies in local Supreme Courts and lower courts. In 22 states, there are committees that review the profiles and interview candidates. In two other states, South Carolina and Virginia, judicial appointments are made by state legislatures.
Sanford Gordon, a law scholar at New York University, estimates that 87 percent of the 10,000 judges who preside over local appellate and trial courts face the electorate at some point in their careers. Some 14 states, including Ohio, Kentucky, Michigan and Wisconsin, elect their judges in nonpartisan elections. This means that candidates cannot register as Democrats or Republicans, even if their ideologies are more or less progressive or conservative. Seven others, including Illinois, Pennsylvania, West Virginia and North Carolina, allow candidates to run as members of a political party or as independents. Half of the states impose age limits on judges. Most must retire when they reach 70.
In a handful of other states, a hybrid model exists. This means that judges are first chosen by governors for office. And when that term ends, candidates must run in an election to keep their position. These are not open elections in which they are measured against other contenders, but rather the electorate must decide with a YES or NO whether the judge should retain the position. In some states, Congresses, state bars or special commissions have the final say on whether judges return to their districts.
Michael Kang, a professor at Northwestern University’s law school, said nearly every state started with the federal model, appointing judges to life-long positions. “In the first century of the country, there was a lot of concern about corruption, about politicians controlling the process of judicial appointments … so the election was a decision to reduce polarization,” Kang said at a State Department-sponsored talk in June. Kang noted that the election of judges is very popular in the country and that no state has reversed the process.
The situation has changed a lot in recent years. The division that the country is experiencing threatens one of the basic principles of the administration of justice: impartiality. “Across the country, local courts face challenges to the most basic justice and legitimacy. Many of these have to do with the system by which judges are selected. Several of the most serious threats to justice have to do with the increasing polarization of judicial elections,” warns the ABA.
Elections are becoming more and more expensive
The election of judges, like other elected positions, allows donations from interest groups. The polarized environment has raised the cost of judicial races. Donors are willing to invest more in candidates if they feel they have a better chance of receiving favorable rulings.
“We are seeing a dramatic increase in spending or fundraising by local supreme court candidates,” said Professor Kang, who co-published this year with Joanna Shepherd Free to Judge: The power of Campaign Money in Judicial Elections“It’s all private funding, so it’s private donors, sometimes parties, or lobby groups that give money to candidates,” he adds. “The reason for the increase in this spending is the shift by the major parties, the Democrats and the Republicans, which are more polarized. State elections have followed this trend,” says the academic from the Pritzker School of Law.
The most recent example occurred last year in Wisconsin. The liberal camp tipped the balance of the local Supreme Court with the election of Janet Protasiewicz, a circuit judge who joined the highest local court. The process cost more than $45 million, making it the most expensive judicial election in history. Several
sensitive issues were on the table, including abortion rights, redistricting and voting rights. These made her attractive competition for progressives and conservatives to throw money at.
Wisconsin holds nonpartisan judicial elections. Still, Protasiewicz was seen as the progressive, and her challenger, a former Supreme Court justice named Daniel Kelly, was perceived as being on the right. Protasiewicz’s campaign raised $14 million, with the local Democratic Party being the top donor ($8.9 million). In addition to Democrats, lobby groups, law firms, hedge funds and the education sector supported the judge with donations. Business moguls Elizabeth and Richard Uihlein, owners of the Wisconsin-based Uline parcel delivery company, invested $5.8 million in Kelly. The local Republican Party contributed $780,000.
In their book, Michael Kang and Joanna Shepherd suggest that returning to the federal model could reduce the weight of private money in the selection of judges. However, the academics admit that this is not feasible due to the great popularity of these processes. So the recommendation is that candidates for a position aspire to a single term, of 14 years duration, without the possibility of re-election. “The idea is that judges, once elected, seek job stability and not worry about elections, but also gain experience and seniority, which can benefit in the long term,” said Kang. What she describes sounds like a judicial career, like the one that is in danger of disappearing from the Mexican judiciary.
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