Should We Elect Judges?

In the US, judges, like politicians, are frequently elected but Australia follows the model of most common law countries, where judges are chosen by the executive branch of government.

You may be familiar with Sheriff Joseph M. Arpaio, described by some as “America’s Toughest Sheriff” who has been elected six times, each time for four years. Consistently earning high approval ratings, Arpaio knows who he has to please – he is aware that the public is his boss, and they seem to approve of the strict and somewhat unorthodox ways he runs the county’s jails.

The 7,500-10,000 inmates living under his jail system wear pink underwear, and are not served salt and pepper in order to save taxpayers $20,000 a year. Entertainment and luxuries are not something those in his jails enjoy: smoking, coffee, movies, pornographic magazines and unrestricted TV are all banned.

Whether or not inmates sporting pink underwear or learning the meaning of a hard days work under Sheriff Arpaio’s prison labour scheme is something you’d be likely to vote for, perhaps you would like the chance to vote at all.

After all, it sounds pretty democratic to choose our judges the same way we pick our politicians.

And potentially dodgy judges, under our current system, can prove to be very difficult to get rid of – justices need to do something very bad in order to get the sack. Otherwise we have to wait until they reach the age of 70 (or 75 in the High Court of Australia) when they must compulsorily retire.

According to the Federal Constitution, judges can only be removed for “proved misbehavior or incapacity.” Such findings are rare.

However there are many very good reasons to support the system we have in place – elections could politicize judges, who are supposed to be impartial.

If judges have tenure guaranteed for life, they will not be swayed away from their duty by the need to garner popular support to ensure they have a job post-election.

Many people think that judges should in some way embody or at least reflect community standards and values and apply them in cases. However this is not the way that the judicial function was designed – judges are to apply the law (which is created by elected politicians) not to implement vague or subjective notions of ‘community standards’.

If the law departs from what people may perceive as ‘community standards’ judges may be placed in a position where they may be tempted to compromise the law in order to keep or gain public approval to continue their job after the next election.

During highly-publicised media trials there may be pressure for judges to act a particular way. There is a chance that the election of judges for any other reason than capability for the task could lead to a decline in quality of and respect for the judicial system. While judge-made law certainly has its place and judges certainly do more than mere implementation of the law – the courtroom is often the incorrect avenue for reform.

Judges may be encouraged by elections to go down the campaign path (spending time on getting re-elected instead of focusing on their judicial duties) and making election promises as they have done in the US.

Australian courtrooms often have back-logging as it is, the build up of cases, where judges must work their way through lengthy court lists each day. Is it really necessary to take judges away from the over-crowded courtrooms to work on campaign strategies?

Judges currently, according to the Constitution, have the job from appointment until the age of 70 or 75.  Any change to their appointment would mean changing the constitution and that requires a referendum.

Given the paltry track record of referenda succeeding in Australia, it is by no means certain that this one would succeed. Just 8 out of 44 referenda have succeeded since our Constitution was created in 1901, and so whether you agree with it or not, elected judges don’t seem like an imminent possibility.