Election season. That special time every 2-4 years where you see a litany of men and women running for all sorts of positions. House and Senate seats, Legislative positions, Gubernatorial races, the Presidency, and countless others. However, on the ballot you will also see people running for positions that the public should never have a say in: judicial positions.

"But Kole," you might say, "How could we not vote for judges and justices? They are important to our society, and not having a say isn't very democratic!" Well, I agree to the first part of that. Of course judges play a vital role in our society in general. Judges are extremely critical, they are the ones dealing directly with the populace first hand, seeing how the law is in effect and how people are interacting with the law. Judges make countless important decisions every day ranging from simple traffic cases to high profile criminal cases. Malpractice cases, divorce cases, child custody cases, and everything in-between. Decisions that will ultimately affect lives and impact us every day. If judges are so important to our civilization why should the people not have a say in who serves as the ultimate deciders in truth and justice for us?

To address the concerns of "it's not very democratic", well, it shouldn't be. I know that sounds bad but lets explore that a bit. The highest judicial officials in our country are the Justices on the Supreme Court. Their decisions are felt by everybody. When is the last time you voted for a Justice? You haven't, because even they are un-elected! Quite frankly, do we even care about this being "democratic?" Because the data shows that the masses don't when it comes to voting for these esteemed positions. Voter turnout for judicial elections sits at a dismal 14%. That is it, only 14% of our population even cares enough to vote for a person who will be carrying out an important role in society. Of those 14% how many of them are even truly informed about the men or women running? While there is some information given in voter pamphlets it is not always sufficient. Even organizations like the State Bar do not always provide great information either.

For example, the Washington State Bar only shows who is running for what positions are available, no further information. This is slightly unsettling because in 2016 there are three Justices for the Washington State Supreme Court running for re-election. How many of you off the top of your head can tell me anything about Mary Yu, Charles Wiggins and/or Barbara Madsen? What about any of their challengers?. Sometimes it could take significant digging to determine why someone is so qualified to be a judge or a justice, and how many people of the 14% that bother to vote will do that digging? When the electorate has limited information or no real desire to find some, it can vote for completely absurd reasons and not based off of merit, something like names. Names can totally affect outcomes, perhaps a name sounds more “black” or more “Mexican” than a name that sounds more “white.” This may sound ridiculous but racial bias is still an unfortunate aspect of our society today. Or perhaps a judicial candidate happens to bear the name of a great American family like Kennedy or Washington, making people think they are more regal or qualified for the job.

Another factor as to why we should not be electing judges is because of the nature of elections themselves. Obviously, to win an election a candidate must be the more popular one in terms of who won more votes. However, this is very problematic considering that judges are constantly placed in situations where they have to make unpopular decisions. Whether it is to uphold a law that is perfectly legal or strike down an unjust one, judges have the moral responsibility to be impartial and make the right legal decision. It is wrong for someone to fear for their job security for actually doing their job in the way it was meant to be. Especially if it is a partisan election and judges are running on party lines. The people who voted that judge in will expect decisions based on those Republican or Democratic ideals, even if the election is supposed to be "non-partisan." If a judge has to worry about upsetting voters then that same judge has as similar fear for upsetting donors.

Running for office is not cheap and it often takes donations, sometimes from people who clearly have an agenda. Jessica A. Levinson writes “Judges should not have to consider how their decisions would play in the next election — with voters or potential donors. And speaking of donors, who are likely to make campaign contributions in judicial elections? Typically, lawyers — people who know the candidates and may appear before that judge" (LA Times, 2014). She is basically arguing about the extremely high probability for conflict of interest. This fear that a judge could be “bought” by some special interest group is not completely unfounded. In the year 1986 in Alabama the spending for two Supreme Court seats was $237,281 and in 2000 the spending for four seats was $13,104,909. A similar case in Michigan when three reelection races for the Supreme Court was financed by $7,058,914 in donations (G. Alan Tarr, Judicial Process pg. 55).

In Washington State, big money is being poured into this year's Supreme Court election. The Washington State Republican party has spent about $36,500 for all three judicial challengers. Greg Zempel, who is running against Chief Justice Barbara Madsen, has received an additional $700,000 from special interest groups. According to Jim Camden of the Spokesman-Review, Zempel received $130,000 from a PAC that supports charter schools, $100,000 from Judicial Integrity Washington, $350,000 from major Republican donor Ken Fisher, along with $50,000 each from a Bellevue developer and Mariners CEO John Stanton (October 26th, 2016).

The incumbents are not innocent themselves from receiving money either. From the same article by Mr. Camden, "Each has received about $9,300 from the Know Your Ballot PAC, which is funneling money from the Washington Education Association, which is a big fan of the court’s McCleary decision, and groups that support raising the minimum wage. They also are getting about $2,500 from Planned Parenthood Votes, the political arm of the women’s health provider." (October 26th, 2016). Again, these elections are supposed to be "non-partisan."

So what should be done? The answer should be a merit based selection, otherwise known as the Missouri plan. This is a system where it is assisted appointments in an effort to remove politics from judging and removing judging from politics. In this process a team of lawyers selected by the State Bar and non-lawyers selected by the governor of a state get together and create a list of potential nominees. The governor then reviews the list and makes an appointment until the judge runs unopposed in a retention election asking if this judge should be retained or not. While the data suggests that retention elections have even lower turnout than normal ones (G. Alan Tarr, Judicial Process pg. 58) the benefits outweigh it. Benefits such as being insulated from politics, less vote “buying” from interest groups, essentially removing the uninterested and unintelligible masses from the equation, and putting the most qualified people in judicial positions.