Abstract
In this Article, I argue that direct judicial elections, at least to the extent that they mimic other general elections, are not the wisest course for selecting judges, though not precisely for the usual reasons cited by commentatorse.g., that lawyers are in a better position to evaluate the merits of judicial candidates than the public because they are less likely to be swayed by singleissue politics or irrelevant matters.8 In fact, it seems to me that both the perspectives of the practicing bar and the public are necessary to hold judges accountable. For example, a lawyer may be in a better position to identify judicial incompetence, whereas members of the public might be more likely to identify judicial arrogance or bias toward minority litigants. Instead, I will suggest that the public virtues that make a person a good judge are not usually the same virtues that make a good (one might say virtuous) politician, e.g., a person who campaigns for popular election to a politically responsive office. If I am correct, then the presumption that philosophy equals methodology equals right outcomes is unseated. Stated more concretely, if we begin with the assumption that democratic accountability can be best achieved through traditional direct elections, then we must necessarily presume that the best or most virtuous campaigners are also the best or most virtuous officeholders. Even conceding the much-debated validity of this presumption for traditional executive or legislative candidates, I will argue that it clearly does not hold true for judges. If my account proves plausible, then even those who champion democratic selection of judges would want to call for a system that selects those best at the task of judging. Such a system would encourage true democratic accountability while selecting virtuous udges, unlike the current system, in which any law-trained citizen, no matter how incompetent, can take her chances at the polls. In making the argument that good judges do not usually make good electoral candidates, and therefore should not be elected, I borrow from the contemporary resurgence of virtue ethics. While there are numerous compet- ing strands of this longstanding Western tradition, I will primarily focus on a simplified version of the argument presented in Alasdair Maclntyre's text, After Virtue.9 MacIntyre's account of virtues as habits of character necessary for those carrying out social traditions also informs the practice of judging, which is aimed toward the telos ofjustice in society.
Recommended Citation
Marie A. Failinger,
Can a Good Judge Be a Good Politician - Judicial Elections from a Virtue Ethics Approach,
70 Mo. L. Rev.
(2005)
Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss2/3