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October 17, 2009

Redux: Is that an elected county judge in your pocket?

Or are you just hugely happy to see me?


Judges should not have "constituents." Right now, in most American states, they still do. And there is no way to dress that up.

Quick and dirty re: elected state judges and campaign money. We've followed and written a lot on the U.S. Supreme Court case about a popularly elected state supreme court judge, and campaign money recipient, who failed to disqualify himself in arguably suspect circumstances. The Court ruled in June of this year that a West Virginia judge should indeed have disqualified himself from hearing an appeal of a $50 million jury verdict against an a coal company because its CEO had been a major campaign donor. See slip opinion in Caperton v. Massey Coal Company (June 8, 2009).

The popular election of state judges--permitted in some aspect in a clear majority of the states--gives the appearance of justice being "for sale." Elected judges can be especially "bad" for good clients who do business all over the U.S. and the world. Even when elected judges are "good"--and, to be fair, there are some great ones--state systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.

The point: Judges should not have "constituents," i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

Generally county-based, American litigation at a state level is already frustratingly local and provincial for "outsider defendants"--businesses from other U.S. states and other nations sued in local state courts--who cannot remove to federal courts, the forums where federal judges can and should protect them from local prejudice.*

American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect--and also poses risks--but it is far better than what most American states currently have in place. It's time for American states to grow up. See our many past posts over the last four years on this subject in our category on the right side of this site: Federal Courts.

*One reason that federal diversity jurisdiction was created in the first place was because of the framers’ concern that prejudices of state judges toward out-of-state persons would unfairly affect outcomes in trial courts. Erwin Griswold, Law and Lawyers in the United States, 65 (Cambridge, Harv. Press 1964). Over 200 years later, our current systems in the states make that local prejudice almost inevitable. See also, the interview of General Electric's Mike McIlwrath in July 2009 of Prof. Geoffrey Hazard of Hastings Law School, who addresses why European business really fear U.S. state courts.

Posted by JD Hull at October 17, 2009 11:59 PM



I wanted to congratulate you on the selection of this post for November's Carnival of Trust, hosted by Jordan Furlong.

The Carnival of Trust is held monthly and brings to light the best posts on the subject of trust in business, politics and society. It is great insight and writing like yours that helped make for a fantastic Carnival.

You can see the Carnival at http://www.law21.ca/2009/11/02/carnival-of-trust-november-2009/

Congratulations again!
Kristin Abele

Posted by: Kristin Abele at November 5, 2009 09:17 AM

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buy fresh blue cheese


Posted by: johndolasager at February 23, 2010 05:46 PM

John--Thanks for your views on the state elected bench.

Posted by: Holden Oliver (Kitzbühel Desk) at February 23, 2010 07:04 PM

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