A task force of judges met recently to discuss solutions to problems that beset judicial elections in Alabama. This year’s nasty race for a seat on the state Supreme Court prompted Chief Justice Perry Hooper Sr. to appoint the group to recommend reforms.
One judge proposed that Alabama switch to the Missouri Plan — an appointive system with periodic retention elections. But another rejected this suggestion. “The best we can go for,” he said, “is nonpartisan elections. The people will accept it. ... But they are not going to give up election.”
A task force that regards the status quo as unchangeable isn’t likely to change much. The judges would do far better if they launched an aggressive, sustained campaign to educate Alabama voters about the comparative advantages of an appointive system over elections. That, of course, would require the judges themselves to understand those advantages.
Many of them evidently do not. During this year’s campaign, the Register’s editorial board interviewed all candidates for statewide judicial offices and asked them for their thoughts on judicial selection. Surprisingly, most of them preferred nonpartisan elections. Yet anyone who studies that alternative will find serious and inherent disadvantages. Here are four of them.
Contributions keep flowing. Whether partisan or nonpartisan, elections are contests. Winners and losers include not just the candidates but also the interest groups who support them: mainly trial lawyers and corporations, who have the most at stake in civil lawsuits. Because Alabama has become a tort heaven for plaintiffs and a tort hell for defendants, the stakes and thus the campaign contributions are inordinately high. Nonpartisan elections wouldn’t make a dent in them.
Judges must go begging. If judicial candidates lose party support, they will have to solicit more contributions directly from potential donors. This will further erode their image of impartiality, because liberal candidates will solicit trial lawyers while conservatives tap corporations.
Voters get less information. Study after academic study has confirmed that in partisan elections, voters depend primarily on party labels when voting. Take away those labels, and a bad situation is instantly made worse. Two weeks prior to the November elections, a Register poll found that 82 percent of voters couldn’t name either candidate for the Supreme Court, and 98 percent couldn’t name either candidate for the Court of Civil Appeals.
Fewer voters participate. Again, academic studies confirm that because party labels serve as voting cues, removing them causes voter participation to plummet. Those who vote typically do so in abysmal ignorance. Exit polling in several New York state precincts found that 70 percent to 96 percent of voters couldn’t even name the judicial candidates for whom they had just voted.
For Alabama’s judges to pursue nonpartisan elections is an exercise in folly, for it would only make dismal matters worse. Instead, they should teach Alabamians about the unique function of the judiciary. Judges are not advocates; they do not represent constituencies; they are not partisans; and they are not politicians. That is why they have no place in competitive elections.
Next: Problems of evidence.