A. MORELLI, The Elective Judiciary: an analysis of the U.S. legal system between law and politics, in Codigo Libre, Law Review of Universidad Autonoma de Mexico, Aguascalientes, December.
“Liberty would have everything to fear from [the Judiciary’s] union with the legislature or the executive.” - A. Hamilton - [1]
The system of selecting judges based on election is a very peculiar model and there is no doubt that may be incomprehensible to the rest of the world, as well as the adoption of a different metric system. [2] Indeed it is a recruitment mechanism that exposes single judges to be strongly influenced by the popularity lever: "Judges are surely disliked by at least 50 percent of the litigants who appear before them." [3]
However, the U.S. doctrine is mostly in favor of this modus eligiendi and firmly asserts that a negative opinion should not be given so fast, since all models have their own problems.
The selection model based on election is by its nature the one that most creates an osmosis between the political and judicial spheres. Nevertheless, in the light of the administration of justice in favor of the citizens, transparency becomes the strongest key factor. The problem arises, however, among the fallacy of the difference between “democracy” and “majoritarianism”, a problem already expressed at the political level by Dworkin’s philosophical doctrine. [4] Therefore a system permeated by information is necessary in order to create the basis for a coherent and useful instrument in the hands of voters.
The model at scrutiny proposes a judge as a politician of law, a candidate who knows how to captivate the voters, preferring a justice system administered for the society, rather than crystallized in the legal technique. It leaves to the voters in primis the possibility to assay the judicial independence level and on this basis to express a preference at the election time. Therefore there is no doubt that transparency is the essence that permits a coherent and well functioning model, administered for the society, in a perennial respect of the checks and balances mechanism enshrined in the U.S. Constitution.
[1] Cit. A. HAMILTON, The Federalist Papers, n. 78.
[2] Cfr. HANS A. LINDE (former Justice of the Oregon Supreme Court) in a symposium about judge’s selection in 1998: "To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system", cit. in A. LIPTAK, Rendering Justice, with one eye on re-election, in The New York Times, May 24, 2008.
[3] Stevens, J., dissenting, Supreme Court of he United States, REPUBLICAN PARTY OF MINN. V. WHITE (01-521) 536 U.S. 765 (2002), 247 F.3d 854, reversed and remanded.
[4] R. DWORKIN, Sovereign Virtue: The Theory and Practice of Equality, Harvard University Press, 2002, P. 212 e ss.
