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Sunday, August 26, 2018

My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors

It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure -- not elections per se. You could have elections filling judicial vacancies -- but with the candidates' receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms -- with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

Another solution to the conflict is to use either elections or appointment for fixed and limited terms -- but to preclude second or subsequent terms in judicial office (or, at least, to the same judicial post). 

I wonder if any might agree with the following proposed reform -- which is somewhat tangential to the discussion above.... U.S. attorneys (i.e., federal prosecutors) posts might only be filled with people at the end of their careers in private practice or in government. That is, former U.S. attorneys should be precluded from thereafter taking on both any federal judicial position (if not any appointed federal position) and any elected federal position. [I expect that any such reform would require a constitutional amendment.] I'd like to see prosecutorial discretion vested in those who are not thinking about the horizon of the next election or the next judicial appointment. If such a reform were passed, I expect the U.S. attorneys posts would fall to retiring federal (and state) judges, senators, governors, and, perhaps, very senior DOJ officials and other law officers in the civil service, professors, and members of the bar--all people who would be willing to give up a future career in regard to elective positions. If the feeling on this listserv is that (elected) judges are biased by elections--doesn't it make good sense to remove prosecutors from the orbit of such elections? 

Seth Barrett Tillman, My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors, New Reform Club (Aug. 26, 2018, 9:21 AM), 

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