An elected Supreme Court would be more diverse

The argument

Judicial selection would produce a more diverse Supreme Court with justices from all backgrounds and judicial leanings compared to the judicial appointments. For example, currently, the U.S. Supreme Court is composed entirely of people who went to law school at Harvard or Yale. Even though this fact may imply that justices are qualified for the positions, it represents a troubling lack of diversity. Citizens may feel that elites do not have their welfare in mind. Judicial selections can draw on a wider range of candidates than those who impress the Senate Judiciary Committee with their education at elite institutions. In particular, minority communities prefer judicial selection over a judicial appointment. Appointment selection methods yield power to a small group of elitist White male lawyers to appoint other elitist White male lawyers to the bench. This fact is apparent from the predominance of white males on the U.S. Supreme Court. A 2004 study has found that the Judicial Merit Selection Commission did not nominate two-thirds of the African American candidates who applied for a justice position. Similarly, a Puerto Rican Legal Defense and Education Fund study found that elective systems result in greater Hispanic representation. Overall, when an appointive authority is not sensitive to creating a representative judiciary, judicial elections become the only solution.

Premises

Counter-arguments

Judicial elections do not always promote diversity in a Supreme Court. Minority candidates face unique barriers under the elections model. First of all, the issue of campaign finance is an obstacle for minority judicial candidates. High costs of campaigns pose a threat to minority candidates since majority candidates are more advantaged in raising money for their campaigns. Law professor Spencer Overton confirms that “Money comes from a narrow segment of the population and as a result campaign finance impacts the diversity of the bench.” A successful campaign heavily relies on private individual contributions. A study found that although people of color are almost 30% of the U.S. population, they make up less than 1% of the contributions to judicial campaigns. Secondly, even when minority candidates can raise sufficient campaign funds, the issue of low public participation in judicial elections remains an obstacle. For example, in the USA, minority participation rates lag far behind whites. 62% of whites vote in judicial elections, whereas only 48% of African Americans go to the polls. As a result, minority candidates suffer in low turnout elections. Additionally, minority candidates (namely women and people of color) struggle to overcome negative stereotypes when running for elections. There is a false assumption that these candidates are unable to make fair decisions in matters that involve their particular minority group's interests. Hence, they become less likely to be elected. As a piece of evidence to this counter-argument, a 2011 study conducted by Steven Zeidman from the CUNY School of Law found that in the United States, elections did not increase diversity the outcome. In short, minority communities are less able to financially support their candidates and more likely to suffer from low voter turnouts when compared to majority communities.

Rejecting the premises

[Rejecting P1] The credential narrowness is accurate and describes current appointing practice rather than appointment as such. State systems using appointment produce very different benches, so the premise generalises from one instance of a method to the method itself. [Rejecting P2] This is the claim that carries the argument, and the evidence contests it. Judicial elections raise a campaign-finance barrier that falls hardest on minority candidates — contributions to judicial races come overwhelmingly from a narrow segment of the population — and low-information ballots favour incumbents and familiar names. [Rejecting P3] Descriptive representation and legitimacy are linked without argument, and the link is specifically contested for courts. A judiciary answerable to majorities is a different institution from one insulated from them, and its legitimacy is usually grounded in independence rather than responsiveness. [Rejecting C] The conclusion trades away something the premises never price. Elected judges must raise money from litigants and interest groups who later appear before them, which is the standing objection to the model and goes entirely unanswered.