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December 09, 2010

America's Elected Judiciary: Are We Done Yet?

The popular election of state judges is beneath all Americans. But we are so heavily invested in it, and so used to it, that we are even incapable of experiencing the "oh-my-god" embarrassment it ought to cause every day those state systems continue to exist. Our national denial is still in concrete.

We've mentioned Tocqueville before. If he were alive today, we had argued, Alexis de Tocqueville might very well "like" George W. Bush--as his exemplary American, warts and all. The younger Bush as president for 8 years--or anything he did or didn't do--would not have surprised or disturbed the famously prescient Tocqueville. In fact, it would have all made perfect sense to him.

But Tocqueville would be appalled to learn that a majority of the American states still have some form of popular election of judges.

The young French author who toured America in 1831 noted that some American states already were in the process of reducing the power and independence of the state judiciary through certain "innovations", and it disturbed him. One was the state legislatures' ability to recall judges. And another:

Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.

from Democracy in America, Vol. I, Part 2, Ch. 8 (Tocqueville's emphasis in some translations).

Posted by JD Hull at December 9, 2010 11:59 PM

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