Sunday, May 25, 2008

Electing Judges: Are the downsides for rural America even greater?

Adam Liptak writes in this morning's New York Times about a practice widespread in the United States but rare elsewhere in the world: electing judges. He highlights how politicizing the judiciary in this way can skew how decisions are made, and he features the recent Wisconsin Supreme Court election, describing it this way:
The vote came after a bitter $5 million campaign in which a small-town trial
judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.
Liptak reports that 87 % of state court judges are elected and that at least some judges are elected in 39 states.

The story reminded me of the particular problem presented by judicial elections in rural places. While the state-wide election that Liptak describes drew big money, including that from independent groups who jumped into the advertising fray, some additional problems may arise in rural areas. Judges there may be influenced by not only by the need to be seen as "tough on crime" for purposes of getting re-elected, their decisions in individual cases may also be influenced by personal relationships with litigants.

My recent research and writing about domestic violence in rural contexts indicates that various scholars have noted the challenges associated with small-town judges in the context of these and other gender-sensitive contexts. Some of the problems arise from lack of judicial education about psycho-social phenomena such as the cycle of violence that leads women to return to abusive partners. Other problems arise from judges being part of the "good ol' boy" networks that include perpetrators. Appointing judges would not necessarily solve this problem. That is, those appointed, if local, are still going to know folks in the community. However, an appointments process might diminish the pressure these judges feel to favor their cronies. Better judicial education for all judges, including those serving rural communities, about all forms of violence against women (e.g., rape, domestic abuse) presumably also helps. Indeed, this is one use that has been made of funding under the rural category of Violence Against Women Grants from the DOJ Office of Violence Against Women for the past decade, and there is some evidence it is improving outcomes, such as the granting of more protective orders.

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