Delaware’s state courts have been named the best in the country for tort and contract litigation. This is the sixth consecutive year the First State has been awarded this honor. In our experience, the same result holds true for employment litigation.
Not surprisingly, Delaware and the other four states that ranked highest, Nebraska, Maine, Indiana and Utah, appoint their judges, and the three states that ranked at the bottom, West Virginia, Louisiana and Mississippi, all elect their judges.
So maybe democracy isn’t what its cracked up to be?
Or maybe it’s a bit more complicated.
Unlike the other branches of government, the courts are not supposed to simply reflect the will of the people. Judges are required to apply the law, whether “the people” like it or not. And that’s where it gets messy for elected judges. As we can easily glean from what goes on in our neighboring state of Pennsylvania, judges have to spend large sums of money to get elected, and they get most of that money from interested constituencies like trial lawyers and unions. So when a large donor, in the form of an attorney as advocate, or a union as litigant, appears before the judge, . . .
. . . Will the judge “bite the hand that feeds him?”
Human nature has the answer.
That is not to say that Delaware and other states that appoint judges do so free of politics. But the politician in Delaware who appoint the judges, Delaware’s governor, has for many years recognized that Delaware stands to gain from maintaining its preeminent position as a quality court system, and governors of both parties have made a point of appointing capable jurists rather than political hacks. What that means is that all parties in a lawsuit get a fair shake based on the merits of the case, rather than money talking to tip the scales in favor of the largest contributors.
And that is how a real democracy should work.