Consideration for candidates for Pike Country judgeships will kick off on June 5 with the Democratic and Republican primaries. While electing judges might seem like a common democratic practice, America stands almost alone in this exercise.
Bolivia, a small landlocked nation in South America, is the only other modern-day democracy to appoint most of its judges through public elections.
We spoke to district judge William Hightower about judicial elections and their implications. He is the longest-serving district judge in Alabama. In his 41 years on the bench, he has never had a decision overturned on appeals on record.
Q: All other countries in the world, except Bolivia and the U.S., appoint their judges. Why do you think that the U.S. practices this unique exercise of publicly electing judges?
A: This country has had, from its very beginning, a very strong emphasis on self-determination. The process of direct election of judges grows out of this very philosophy of self-determination, which states that the people ought to decide what happens in the state.
Q: In a constitutional democracy, how is the judiciary different from the legislative and the executive? More importantly, how are the courts in the United States different from courts elsewhere?
A: The legislative and, to some extent, the executive branch make the laws; the executive branch enforces the laws, whereas the judiciary resolves the conflicts that arise in the administering of the laws. In the United States, the judiciary is based on what we call an “adversarial system,” which means that the court sits as an impartial arbiter and each side gets to make its argument. This is very different from the “inquisitorial system” that is common in European courts where the courts actively participate in the investigation.
Q: In most countries, courts are held as apolitical institutions, but the critics say that courts are no more apolitical than the judges who preside there. Do you think courts can be apolitical?
A: I do not think so. You can look at federal judges, who are all appointed. It is clear that they bring their ideology with them, and it is visible in the federal judiciary from one end to the other.
Q: Do you think it is problematic that judicial candidates have to ask for donations from big corporations when running for a position on the bench because the donors might appear on the court as litigants?
A: It is troubling that campaign finance has an effect on election from whichever perspective you view it, but the Supreme Court of the U.S. has made decisions indicating that political speech supported by campaign donations is a part of freedom of speech and is protected under law. However, there are canons of judicial ethics that mandate that a judge recuse himself when there is a possible conflict of interest. Furthermore, Alabama has strict rules about reporting the sources of campaign contributions, which also helps to prevent such conflicts of interest.
Q: Do you think that the public will be more inclined to vote on party lines rather than by considering relevant qualification?
A: It is known to happen, but there is nothing about our system or any other system that makes it perfect. It is not always the case that people vote on party lines. Out of seven times I was elected, I ran as an independent candidate five times.
Q: There was a voter turnout of a little more than 55 percent in the presidential elections, and the turnouts for judicial elections are even lower. Do you think this impacts the legitimacy of the judges thus elected?
A: I don’t think so. The legitimacy of the courts has nothing to do with the voter turnout. It comes from the principles of self-determination I talked about. The people are afforded the opportunity to vote and choose their leaders, and they are free to decide whether to exercise that right.
Q: There are reports that suggest that judges impose longer sentences during re-election years to appear “hard on crimes” and appeal to voters. What are your thoughts on that?
A: It is unfortunate that some judges are affected by such pressure, and we must do our best to work fairly without regard to such pressure. No system is perfect, and it is not the case that only judicial elections cause such problems. These pressures are also there when you have judges appointed by an executive body.
Q: During campaign season, we sometimes see televised ads making fiery accusations and attacking other candidates. Do you think these ads do more to damage the reputation of the judiciary than the individuals?
A: The canon of judicial ethics in Alabama forbids judicial candidates from making baseless accusations. However, third parties not related to the campaigns can do this. It falls under the freedom of speech, and we are sworn to uphold it whether we like it or not. There is a Judicial Inquiry Commission that looks into improper public speech by the candidates and interaction between judges and parties with pending cases, and if it finds any violation of rules, it can lead to recusals and even disqualification. So there do exist measures for checks and balances.
Q: Do you think that campaign activities and the related politics are reduced in an appointed process where the judges are chosen by a bipartisan committee and appointed by a governor?
A: I absolutely do not think so, because you can never find a process that completely eliminates politics. If you look at assisted appointed process, you elect the governor and the bipartisan committee that appoints the judges. Therefore, you are only shifting the politics from the judges to the appointers.