Holy Freuding Freud, Alabama: Your Court Elections Are Partisan?

First off, have I mentioned that I love The Root generally, and Michael Harriot specifically? Well, it and he have a new article up about the man republicans have nominated to run for Chief Justice of the Supreme Court of Alabama.

The focus?

The man who could replace Roy Moore as the next chief justice of Alabama’s Supreme Court is a lot like Moore—only more racist and homophobic.

Okay, yeah. That deserves discussion, and I like the path they’re taking:

Let’s be clear. Roy Moore is a racist. Moore insinuated that the 13th Amendment, which abolished slavery, should be repealed. He said that the last time America was great was during slavery. He insisted that President Barack Obama was not a U.S. citizen. But of course, even when he was accused of racism, his wife insisted that was impossible because one of their lawyers “is a Jew.”

That sets up their introduction to Chief Justice-candidate Tom Parker rather nicely. But what left me gasping is this:

Allow me to introduce Associate Justice Tom Parker, the man whom Alabama Republicans chose to fill Moore’s vacant seat as chief justice.


To be clear, I’m not talking about this:

In a 2010 ad, Parker compared U.S. District Judge Virginia Phillips, who supported gay marriage, to a terrorist, explaining: “Most people believe that al-Qaida is one of America’s biggest security threats; I think it’s time to add liberal activist judges like Judge Phillips to that list.”

Although please note the word I stressed. This was a campaign advertisement, not an off the cuff remark that got unexpected circulation.

Nonetheless, what left me floundering was the phrase

Alabama Republicans chose

Had they finally succeeded in disenfranchising all those petulant mini-tyrants who dared to think they had the right to belong to another political party? Nope. Read the Montgomery Advertiser:

Associate Justice Tom Parker took the lead in the primary election for Alabama Chief Justice, beating out colleague and incumbent Chief Justice Lyn Stuart in a close fight for the Republican nomination.

With 2145 of 2169 precincts reporting, Parker led with 51.9 percent of the votes compared to Stuart’s 48.1, according to complete unofficial returns.

It’s bad enough that judges are routinely elected across the US. (I lived most of my life in Oregon, where non-partisan judicial elections are the norm.) It’s unconscionable that judges are elected in partisan races with official partisan primaries preceding them.

One might think by my support of the recall of Aaron Persky that I’d be perfectly fine with judicial elections. No. In general, I’m not. There is quite a lot of research about how elections corrupt the perspectives of judges and lead to diminution of defendants’ rights and harsher sentencing in criminal courts.

Try this, for example.

Or this.

Or this.

Shall I go on?

Although I’m no expert in California law, or US law, or criminal law generally for that matter, the courtroom statements of Persky clearly treat Brock Turner differently for who he is while avoiding sentencing him for what he did. His creative sentencing, though not illegal, was so far outside the norm that it sparked the Democratic majority in California’s state Assembly to pass new law on mandatory minimums. Relying on recalls once every several decades when there’s clear evidence of unusual and inappropriate sentencing is vastly different from routinely relying on popular election to fill the judicial bench. Recall can and should (and does) remain an important democratic remedy for an unaccountable judiciary, but the vast majority of judging – especially for the civil courts which frequently determine cases directly affecting monied corporations, a topic less studied than corruption of the criminal courts – should proceed without any relationship to popular elections.

That established, in a two party system the public writ large is restricted to choosing from two candidates each of whom is chosen by a party representing only a third or a bit more of the electorate. For judicial elections, when either party has a safe majority in the state (say 50% to 33% with 17% independents) only half the voters even have chance to influence the selection of the person who will ultimately rule on the law in that state.

If judicial elections are bad – and research has shown that they are very, very bad – then partisan primaries for any judgeship, but especially seats on a state supreme court are abominations whose horror cannot be expressed in language. Imagine a film student producing a video of a performance major’s sophomore interpretive dance project and you get some idea of how horrible an idea partisan primaries in judicial elections appear to anyone who cares about the rule of law.

Freuding Freudian Easter Bunnies, Alabama. Just how opposed to justice are you?


  1. brucegee1962 says

    I live in a state with judicial appointments, not elections, and I agree with you that elected judges are a horrible idea. But given a state really wants to elect their judges, how would it work to do so in a non-partisan way? It seems like the only alternative would be some kind of petition system to get on the ballot, and even then, I’d think most people would find ways to figure out the party affiliation of all the candidates pdq.

  2. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    In a partisan election, a party is allowed to place someone on the ballot with the party identified next to (or beneath) the name.

    In a non-partisan election, party is not identified on the ballot. Further, in many cases a person is disqualified from the ballot if they engage in certain actions related to acquiring a position as the official candidate of a party. The party, of course, is free to endorse anyone they choose, but the candidate can be removed from the ballot by taking certain actions. Also, without any primary whatsoever, the election can face two or more strongly right-leaning republicans against each other while a single other candidate represents a mainstream-to-left image, which would split the right-wing vote and virtually guarantee the election of the center-left candidate. A party primary reduces the likelihood of this outcome, because a right-leaning person who can’t win an election where only right-wingers are allowed to vote is unlikely to go on and run as an independent in the general.

    (Any election law lawyers want to fill us in on more unique aspects of non-partisan elections?)

    But really, the most corrosive effect is that the state actively uses its powers to restrict the election of the party nominee to voters registered with that party, which allows most states’ majority party to effectively elect a judge with half or more of the electorate being actively excluded from the voting by the power of the state.

  3. chigau (違う) says

    as a *meta* thing
    I am sooo in agreement with replacing “fuck” with “Freud”, Capital “F” and all.
    It starts here.

  4. seachange says

    It’s particularly easy to do recalls in California, because our state has a history of Rich Railroad Money-> Buying Legislators and Executives->Appointment of judges who START OUT as massively corrupt->Passing laws that are bent sideways left right and center to start with because no judge will say anything different.

    The articles you mention, I didn’t read them past their abstracts. The one that does mention judges getting appointed instead of elected mentions that the pressure to be harsh is still there. It isn’t exactly electing-judges that is the problem to my mind.

    Non-partisan election, and the voters caring enough to research the judges, appears to be the best solution.

    I wonder how difficult it is to recall judges in Alabama?

  5. anat says

    brucegee1962, in Washington state there are quite a few elected positions that are non-partisan. I rely on the local press to find out if the candidates’ history indicates what their political or ideological leaning is.

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