Should judges be democratically elected?

[TNF]

Absolutely.

The idea that the courts are 'independent' is one of the more blatant fictions that is reproduced constantly in the public sphere. The courts, like all other institutions in bourgeois society, ultimately serve the class that rules over the rest of us. Judicial review, for example, has (with one big exception, the 1960s-70s) almost always been used to strike down laws injurious to Capital. The fact that they sometimes uphold laws that protect workers or the environment at the expense of Capital is part of the theater of bourgeois democracy, whereby the public is given the show of having real influence where none exists, and for avoiding longer term or deeper structural changes to the system.

A brilliant example of that is the very exceptional period I just mentioned. The courts, not being subject to democratic control and oversight, were those who led the way in enacting most of the major shifts in public policy during the 1960s and 1970s. Why was this? Largely on account of the fact that the backwards social policies of the US government were making the US look really awful compared to the USSR (which had full legal equality without regard to race and didn't discriminate against women in the same way the US did, although of course it had major flaws in these areas as well) in the context of the Cold War. With Southern reactionaries holding up progress on these fronts, the courts moved to do what the elected representatives of the public didn't have the guts to do, and in the process did more to effect public policy than any other institution in US history up to that point.

The courts are a 'safety valve' for the bourgeoisie because they ultimately allow it to make sure that needed reforms are enacted even if the legislature won't take action and they make it possible to strike down those actions of the legislature that weaken the bourgeoisie as a whole, in periods in which the state loses some of its class character on account of the ongoing class struggle from below.

The election of judges would not necessarily curtail the class nature of the judicial system, but it would make possible open class struggle within the judicial system. Any extension of the democratic system is a net positive because it allows for the class struggle to take on a new front and provides more of a possibility for besieging the bourgeoisie and tossing them out of power.

However, I think ideally, judges should be stripped of the substantive power they have in sentencing and be turned into more or less a simple mediator in cases brought before the court. Juries should have all power in terms of sentencing, and should be informed of their inherent right to nullify laws they find abhorrent or constitutionally suspect. Lawyers and other legal professionals should become part of a socialized system of administering the law, which would give everyone the right to a representative in court without regard to ability to pay.

And judicial review should be explicitly prohibited. If the Supreme Court takes issue with a law on constitutional grounds, that issue should be referred to the Congress, which should be able to decide whether or not to make changes to the law in question. The Supreme Court should be an appeals court of last resort and nothing more. It's members should be elected to short terms and paid the wages of an average skilled worker.