Why The New York Times Distrusts Democracy
May 28, 2008
Adam Liptak of the New York Times has a long piece comparing democratic judicial elections in America unfavorably with the French system where judges complete a “four-day written test” before entering “the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.”
Liptak uses as his jumping off point last month’s Wisconsin supreme court race – where challenger Michael Gableman unseated Justice Louis Butler. While Liptak decries the “bitter $5 million campaign,” he never tells readers why the race was so hotly contested.
Justice Butler was appointed after decisively losing his own bid for election to the court. He immediately shifted the court in a radical new direction, inventing new theories of liability that threatened to turn Wisconsin into a tort magnet. Without public accountability in the form of democratic elections, it’s unlikely the people of Wisconsin could ever have pried Butler off the bench.
For the sake of balance, Liptak quotes University of Virginia Professor David O’Brien, who praises the “greater transparency in the American system.” He also notes the study favorable toward judicial elections published by the University of Chicago (which we’ve blogged on many times), but fails to highlight its most important conclusion, which is that elected judges are more independent than appointed judges.
Yet Liptak clearly yearns for the “much more rigorous French model” where “aspiring judges are subjected to a battery of tests and years at a special school.” No one would argue that knowledge of the law is unimportant when it comes to selecting judges; this is why we expect lawyers to pass the bar exam before they are allowed to practice. But this does not defeat the case for democratic elections – which is that judges, like all other public servants, must be accountable to the people. Sometimes this accountability is direct, such as through judicial elections; sometimes it is indirect, such as federal judicial appointments which are made by an elected president with the advice and consent of elected senators.
The notion advanced in this article that judges require some sort of specialized training or esoteric knowledge beyond what is required to be admitted to the bar is really just another way to insulate judges from the people. Elites use this argument as a wedge to suggest that voters are not smart enough to determine who has the character, integrity, and yes, legal training to deserve a seat on the bench. This is ultimately why they distrust democracy in the form of contested elections and advance other proposals for choosing judges, such as “merit selection” or the French system.
The real question here is whether we should have a source of power in this country that is completely independent of the people. While the Times seems to say “yes,” in most states, Americans have fought to preserve democratic judicial elections to ensure that judges remain accountable.