- The judges will apply the law faithfully.
- The judges will be TOUGH on crime and they're "law and order" judges.
- The judges will be "fair and just."
- Bad decisions can cost us jobs.
Truthfully, though, this is not the fault of this particular ad or campaign. This weird outcome in inherent in the concept of judicial elections. The very concept of a judiciary is that of a neutral arbiter, and often called upon to be counter-majoritarian. So every single judicial campaign should ideally say the same thing: "I'm smart, I understand law, I'll be fair and just" But obviously, this leaves no way to distinguish between candidates.
Now, it's obvious that some judges are more conservative or liberal than others, so campaigns naturally evolve to point this out, and thus we have judges campaigning on things like this ad. But on what are we basing our decision to elect them (assuming we can see past the rhetorical devices and understand the dogwhistling)? We're electing them based on left/right distinctions, which we understand as a shortcut for policy positions. This is where the fourth item becomes pretty salient, as it's a much more direct left/right assertion. However, we don't want them to go into a case knowing how it should come out ahead of time, do we? Some states ban partisan elections for judges as an attempt to strike a middle ground, but I'd argue this tension is completely irreconcilable. Either we elect based on no distinction at all (so what's the point?), or we're doing it for some reason that can readily be equated to the party lines.
Incidentally, there are other practical problems with judicial elections. As with any election, there's a huge influence of money to buy these TV ads. The Brennan Center does great work on this issue. This has two results. First, as with the legislatures, and everyone else in power, you tend to get rich, privileged people on the bench. This is an unfortunate problem, but unlikely to be remedied as its own issue, given the broader links between money, privilege, education, and opportunity in this country.
Secondly and more directly, people and corporations donate to judges. A 2009 Supreme Court case, Caperton v. Massey, found a constitutional violation when a West Virginia judge didn't recuse himself after having received $3 million in funding from one of the litigants - $1 million more than the total expenditures of both campaign committees. According to the Court, the inquiry is "whether the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias.'" The Court then suggests that the facts here are "extreme by any measure" and an "extraordinary case," implying that perhaps if the coal company had only spent $1 million, or one half of the total expenditures, the judge might have been fine. Incidentally, it is easy to imagine that a judge sponsored by a coal company would be friendly to the coal industry. This reasoning was at the heart of the calls for federal Judge Martin Feldman's impeachment for non-recusal in the oil moratorium decision. He did not own stock of the litigants, but clearly by overturning a decision on an oil case, he was helping the oil industry as a whole, and thus lining his pockets.
So, the point is that there are significant downsides to judicial elections, and even if one could argue that the downsides aren't huge, I can't tell what potential upside there is. Judges will either be indistinguishable or will reflect democratic will on issues. The more we allow democratic will, the closer we come to essentially choosing a seven person (in Michigan) super-legislature, accountable to the people, unable or unwilling to perform their necessary counter-majoritarian function. All-in-all, it just doesn't make any sense.
