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It is a general question about who should lead the juridical power in a democratic country, but then I can complete the question by providing an example from USA.

We know that, in the democratic countries “independence of the judiciary” is well rooted.

So, it makes more sense for me if the head of "juridical power" is also independently elected by direct vote of people. However, I am not sure if it happens in any democratic country.

For example, in the United States, the president (head of executive power) is elected and then he/she will choose the judges!!!

I think, if judges are also elected, then there is a better guarantee for democracy. Is that true?
What can guarantee that, judges will not become loyal to president after election?

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    In many US states, judges are elected.
    – cpast
    Apr 3, 2021 at 23:53
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    Correction - " Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution."
    – r13
    Apr 3, 2021 at 23:53
  • For the US, I think this Q&A resolves your matter.
    – zibadawa timmy
    Apr 4, 2021 at 1:31
  • Presidents cannot fire standing judges. Only the Senate can do that. Supreme Court justices are appointed for life, or until they retire. Supreme Court appointments aren't that common. Presidents typically get to appoint a couple of justices. Chief Justice appointments are rarer still. Most presidents do not get the opportunity to appoint one. The current Chief Justice, John Roberts, was appointed to that position in 2005. His predecessor, William Rehnquist, was appointed in 1986. His predecessor, Warren Burger, was appointed in 1969. That's only three chief justices in over half a century,
    – David Hammen
    Apr 4, 2021 at 4:02
  • I think you shall change the word "choose" in your claim on the presidential power for filling judiciary positions/judges. Also, as pointed out, most of the states' judges are elected through voting.
    – r13
    Apr 4, 2021 at 21:51

4 Answers 4

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I think, if judges are also elected, then there is a better guarantee for democracy. Is that true?

No, it is not true. Elected judges is a bad idea, whether it's the local district judge or the US Supreme Court Chief Justice.

Several states, Texas being one of them, have elected judges at all levels. This is widely viewed as an unfixable mistake. It is unfixable because making them appointed, let alone elected for life, would require a change to the state constitution. That's not going to happen. It is very widely viewed as a huge mistake. Nathan Hecht, the Chief Justice of the Texas Supreme Court, described the method by which judges are appointed in Texas to be among the very worst methods of judicial selection.

Texas regularly ranks in the top three states with regard to the number of wrongful death penalty convictions. All of the states that regularly rank in the top three with regard to wrongful death penalty convictions have judges that are elected rather than appointed. Texas exhibits a regular pattern of bad judges being elected and reelected because they make populist appeals to the electorate, and good judges being voted out of office because they made legally correct decisions that angered the public.

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    IMHO, the concept of having judges be elected positions ranks right up with regard to bad ideas with the concept of having tax assessor / collectors be elected positions. We're seeing how badly the latter idea works in Florida's Seminole County. This kind of chicanery happens across the country.
    – David Hammen
    Apr 4, 2021 at 4:43
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Why do you think that would be a good idea? Being a judge is a highly technical skill and how would the general electorate know which judge candidate was best qualified to sit on a supreme court? The best-looking one? The one with the smoothest delivery on TV?

This risks degenerating into a popularity contest, which is is precisely what elections are, rather than choosing the person most qualified for the job.

The same risk does not apply to a position like a President or Prime Minister because those are leadership positions rather than knowledge positions. As such, the electorate is better placed to judge the qualifications of the candidates. And, ultimately, a President or PM do not succeed based on their own specialist knowledge, but their capacity to lead, part of which is tested by the electoral process.

No, I would much rather have legal experts advise the government on the best candidates to appoint.

Last, but not least, sometimes judges are legitimately called to take decisions going against the wishes of the general electorate, such as ruling against discriminatory practices. A judge elected on the promise that they would not "rock the boat" sounds all too plausible but also the wrong person for the job.

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  • why the president, who has leadership skills, is qualified to elect a judge, wihich has knowledge position, but normal people cannot ?
    – Jimmy
    Apr 4, 2021 at 0:33
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    I think that's pretty obvious. Most of us do not have the capacity to analyze a judge's knowledge of the law. Neither does a president. But people in the legal community who know its big players do have that capacity and they can advise the president. The nomination vetting process can then examine whether the candidate is indeed suitable. Not much of this accessible to the average voter, myself foremost. I'm definitely pro-democracy, but not all its variants: I am deeply dubious of direct democracy via referendums and, respectfully, I am equally unconvinced by your suggestion.
    – Italian Philosophers 4 Monica
    Apr 4, 2021 at 1:12
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    Another thing to note is that elected judges can get voted out for unpopular decisions even if they might be a legally correct one.
    – Joe W
    Apr 4, 2021 at 3:44
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    "Last, but not least, sometimes judges are legitimately called to take decisions going against the wishes of the general electorate" – That is the biggie. How can you protect minorities when your job, your livelihood, your capability of feeding your family literally depends on the majority? Being independent and being elected do not go well together, because you are not independent, you depend on votes (and campaign funds from lobbyists). We also see that problem with how elected Sheriffs treat for example black people in majority white communities.
    – Jörg W Mittag
    Apr 4, 2021 at 16:02
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    @Jimmy in the U.S., Presidents don't "elect" judges, they nominate them and they are approved or not approved by the Senate. The President has a team that vets its selection, and the Senate has the nominee go through the United States Senate Committee on the Judiciary before the whole Senate votes on them.
    – RWW
    Apr 5, 2021 at 15:49
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The main argument for judges being appointed rather than elected is that they should decide based on what the law says is right, not based on what the majority thinks is right. Judicial decisions based on the momentary whims of a majority would treat the same cases differently, depending on what forces are in the majority at a given time. This would clearly run counter to equality, which is a foundation of justice. Moreover, a judge that directly depends on majority support would also be incentivized to disregard the rights of minorities. However, protecting changing or structural minorities against the (tyranny of the) majority is the main purpose of individual rights.

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Every democratic system — paradoxically, perhaps — benefits from what Plato would have called a philosopher class that has an effective veto power over legislation. The ostensible strength of a Democratic system is that it allows citizens to have a marked voice in their own governance, which tends to produce governance in line with the citizens' interests. The ostensible weakness of democratic systems is that (pragmatically) the bulk of citizens are not sufficiently informed, emotionally temperate, or intellectually cautious enough to consistently make good decisions. The solution to this pragmatic problem is to create a deliberative body that is explicitly independent, intellectual, and focused on the philosophical ideals of governance to check and balance the sometimes irrational tendencies of the body politic.

Most democratic systems assign the role of stabilizing the irrationality of the body politic to the judiciary, for the (perhaps obvious) reason that the judiciary is already in the position of balancing conflicts of interest between groups and citizens in a society.

Electing leading members of the judiciary is problematic because it exposes this 'safeguarding and stabilizing' principle to the public's irrationality in several ways:

  • The public may make an irrational choice and elect an unqualified individual
  • A faction may mislead the public and finagle a partisan into the position, compromising the philosophical integrity of the institution for political gain
  • The justice might make legal decisions with an eye to reelection, again compromising the philosophical integrity of the institution

Of course, as we saw in the Trump era no system is free from the possibility of gaming, but the independence of the US Supreme court has (so far) kept the Court from swinging as far to the Right as radical conservatives might have liked.

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