The American habit of electing non-federal judges has always intuitively struck me as a bad-sounding idea. I think reverence for the founders often goes too far in this country, but their arguments in favor of a non-elected federal judiciary seemed sound. But does research back this up? Certainly the result Alex Tabbarok describes here doesn't sound like justice, though it does have a certain populist quality that perhaps some will deem appealing.
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Electing Judges
25 May 2008 10:53 am
Comments (28)
In Texas, not only are judges elected, but they can accept contributions from people having business before their court. I can't imagine that a contribution to the judge wouldn't have a positive effect on the verdict. But maybe I'm just too cynical.
Not cynical enough, probably.
Definitely not cynical enough.
All judges should be elected, serve fixed terms, 8 years is a nice number, and be subject to recall.
Judges at all levels have decided to grab political power and make decisions best left to the democratic process. Since they act like politicians, they should be treated as such.
I once had a judge call a recess so that s/he could ask me back into her/his chambers and ask for my endorsement for her/his re-election campaign.
Yes, elected judges are a travesty. But I don't see the practice of electing state judges changing anytime soon.
Then move to NH Matt.
In my defense, it's kind of hard to get cynical about Texas politics. It's just so bizarre that it's actually quite amusing. Although, if you take it seriously, it's pretty scary. Best not to do that.
Electing judges may not sound just, but neither does appointing Judges to serves 30-40 year terms either.
Writing from a large metropolitan area in Kentucky, we have a pending judicial election where the top vote-getter in the primary is an attractive twenty-something prosecutor only three years out of law school. I understand she's never tried a case. I'm a defense attorney and have found her to be a very reasonable and likeable individual. Apparently family money has enabled her to post innumerable yard signs prominently throughout the area. The problem with elected judges is that 80% of the electorate (if not more), have never had dealings with the judicial system, and are unaware of the workings or goings-on at the courthouse. We have many judges who are related to each other, and name recognition is probably worth 25 or 30 thousand votes in itself. I've often thought of changing my name to Charles Manson and running for judge just to see how much name recognition truly matters to an otherwise uninformed electorate. "Hmmm...I've heard that name somewhere... I guess he'd make as good a judge as one of these other people I don't know."
Judges at all levels have decided to grab political power and make decisions best left to the democratic process.
such as?? matters that are an issue of constitutional interpretation are specifically supposed to be insulated from political power - that is the specific reason we have a Constitution in the first place.
So how about disucssing some non-Constitutional areas where judges "have decided to grab political power" and maybe you have a point. But that talking point generally refers to Constitutional issues which some political types disagree with - so it's a pretty empty one.
Let's remember that the unelected judge, John Jones III, conservative Rethuglican and regular church goer ruled against the intelligent design folks in the Dover case. Would an elected judge who had to stand for reelection rule the same way?
I agree electing judges is a bad idea. I also think lifetime terms for judges is a bad idea. The solution? Appoint judges for staggered fixed terms (I like 16 years better than 8).
Here in Canada none of our judges are elected - the conflicts-of-interest and potential abuses in having political allies appearing before an elected judge seem so obvious that it is incomprehensible that such a system can exist.
Our appointment process includes vetting councils made up of judges, lawyers and interested members of the community who interview potential judges, make inquiries in the community and ultimately make recommendations to the provincial and federal attorneys-general. These recommendations are given very considerable weight.
"Judges at all levels have decided to grab political power and make decisions best left to the democratic process."
Ethel-to-Tilly - such as?? matters that are an issue of constitutional interpretation are specifically supposed to be insulated from political power - that is the specific reason we have a Constitution in the first place.
Feigning ignorance of where judges make up law that has no Constitutional basis won't fly, Ethel -to- Tilly. Everyone knows, from either side, what judicial activism entails...the written word of law or Constitution doesn't matter - just what a high-ranking judge wishes to be new law..
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I agree electing judges is a bad idea. I also think lifetime terms for judges is a bad idea. The solution? Appoint judges for staggered fixed terms (I like 16 years better than 8).
Posted by DTM
Generally agree. I would say that any means of attaining office doesn't matter if you have a judge that strictly interprets and applies law and does not encroach on the powers of the other branches of government or those reserved to The People. It is where judges selectively enforce, make up law, penalize selectively or disproportionately, or encroach that the problem exists....
And appointments have their own pitfalls, as you see selectees come from the ranks of Party Hacks or special interest lobbyists adept at bundling funds for the politicians that appoint them.
My preference:
1. Civil, state probate judges elected by The People.
2. State Criminal, all Federal judges appointed - but with fixed terms and with true ability to impeach or (with States) each State having the legal ability to initiate a popular recall.
3. Niche judges - Patent, Labor Law, Maritime Law, Military Justice, etc. - appointed with appointers and legislator consentors having reference to peer evaluations of those lawyers practicing within those specialties.
4. Applying the same medical standards for fitness to continue in office to judges (and Legislators) as those serving in the military or Executive Office now fall under. The travesty of seeing unfit people by age or medical condition unable to discharge their duties but factoring in critical decisions is all too common in the American judiciary and to a lesser extent, Congress. The power of appointment, the "will of the voters" - matters little when you have Strom Thurmond in his last year mumbling gibberish and all but strapped to a wheelchair, William O Douglas so senile by age and strokes he no longer could read or understand case arguments - We remove or temporarily replace Governors smashed up in auto accidents or with brain tumors, replace the President on a temporary basis when the President is incapacitated, even temporarily.
5. Elimination of judge's ability to impose unfunded mandates on taxpayers. The size of government and government benefits funded by taxpayers should only be a matter of what The People and their elected Representatives decide - not judges ordering swimming pools be built in city schools or free college degree programs for convicts in jail.
The main problems of judges remain:
1. Certain elected judges falling into demagogery(sp?) temptation to remain in office - and harder to purge from the system than a rogue DA like Mike Nifong.
2. Lifetime appointments foster aristocratic counterproductive traits in American democracy and guarantee unaccountability. Lawyers are forced to bootlick to bad judges of vile temperment or incompetence in the judges butchering good justice because the judges are all but immune to removal unless they become outright criminals.
No other nation has "lifetime judges". They, for the most part, created their constitutions after the USA's and think lifetime unaccountability is a terrible idea.
3. The undue role of money in judicial appointments, as well as in buying better justice in the judicial processes.
4. Judicial activism.
The liberal mindset is to suppose that the rule of law is the rule of reason. Quite obviously it's not--nor should it attempt to be, especially in a democratic society.
If elected judges behave as Tabarrok claims, then they represent perhaps the only institutional fixture in America biased *against* private property and corporations. I don't see that as a being a bad thing.
The electoral problem in the U.S. is far deeper than the election of judges - there are far too many elected positions. On one ballot I had to make 63 separate decisions from Senator to the Central Committee of the Democratic Party. I didn't even know what half the positions were let alone the people running for them.
The election of judges is wrong because I, and I'm pretty sure everyone else, doesn't know the first thing about any of the judges running. However, I am even more concerned by the election of District Attorneys. This seems to lead to a race to the bottom of who is going to jail most people. The current DA where I live ran on a campaign that she won 95% of the cases that went to trial in a previous job.
If people were serious about this, which frankly they are not, then judges would be appointed not to lifetime terms but rather - say - ten year terms.
But by and large, people are pleased or displeased with the judiciary depending upon whose ox currently is being gored.
Meanwhile, the United States goes by with far more lawyers and legalism than any other Anglo-Saxon jurisprudence.
Go figure.
I thought the long diatribe about "judicial activism" was written by an ignoramus who knows nothing of anything but, perhaps, the smell of his own feces. Then I saw chris ford wrote it, and I was justified in that original assessment.
Here in Canada none of our judges are elected - the conflicts-of-interest and potential abuses in having political allies appearing before an elected judge seem so obvious that it is incomprehensible that such a system can exist.
Which is in keeping with the British tradition. I'd like to know where the American practice came from: is it because you had a large country, relatively spread out, and a desire to have power devolved to elected officials?
(Even then, judges? DAs? County sheriffs? One former sheriff in NC just got found guilty of taking kickbacks in return for allowing businesses to keep video poker machines after the state banned them. The idea that law enforcement and justice be decided by campaign politics just boggles the mind.)
From a foreign perspective, Americans elect an awful lot of people, and that's cited by Americans as a reason for whizzy voting technologies. Only a small number of voters, likely with vested interests, are going to be adequately informed to choose some of those county dog-catcher downticket races, which suggests to me that you could easily make them appointed positions -- or award them by lottery -- and not suffer much loss of popular accountability.
I think that the answer is to do away with elected judges altogether but limit the terms to, say, 10 years with reappointment not allowed. At the federal level, this would prevent a president from influencing the judiciary by his/her appointments for 30 or 40 years after his/her term ends. This would prevent the country from having fascist cocksuckers like Clarence Thomas and Sam Alito making decisions long after the president who appointed them has disappeared into the sunset.
How about this idea? If you're appointed by somebody (governor or President), you go when he goes, just like everybody else in the administration.
If you're elected, you stay until you're unelected.
If you're hired based on some sort of merit, your merit keeps getting tested regularly. This is the part almost all "merit based" positions ignore: doctors, lawyers, judges, you name it.
Not that any of this matters - if judges were appointed by the Bar on some sort of "objective" criteria, it would just be a matter of corrupting the Bar - hardly a difficult task since lawyers are corrupt to begin with.
Bottom line: all such positions are corruptible and corrupted, by definition. Anybody who thinks any position of power held by some humans over other humans is going to be "fair" just doesn't have a clue about human nature.
I am a lawyer in Minneapolis. Minnesota has judicial elections, although we are well behind the national curve in sleaze. A story from a judicial election told me all I need to know about the almost willful ignorance of the electorate about the judiciary and why the system will not change. I gave me wife a list of judges I was voting for--based on the integrity and legal knowledge of the judges. She was waiting to pick our son up from pre-school with a bunch of other mothers. One lamented the lack of knowledge of the judicial candidates. My wife volunteered that her husband is a lawyer practicing in front of these judges, and offered to give the other mothers her list. Then one of the other mothers said, "I know. I will ask my pastor." All except my wife (thankfully) thought that was a great idea.
Appointing judges does not remove political considerations from the process of selecting judges; it transfers the power to act on political considerations from the people to politicians.
In other words, appointing judges is at least as political as electing judges; the people have simply been denied power in the political process.
For example, consider the nomination and confirmation of federal judges: is that process any less political than an election?
I would rather appear before a judge who had to face an electorate and publish lists of his donors than (for example) a judge who was nominated because his daddy was director of the governor's wife's company and who was confirmed because a senator needed another senator's vote on a highway bill.
First, just because the people's elected representatives make judicial appointments doesn't mean the people are not the ultimate source of that appointment power--just as with any other case of the lawful exercise of discretion by elected officials, the people have simply delegated that discretionary power to their representatives.
Second, of course there is no way to completely remove politics from judicial appointments. But you can structure the appointment process to require a broader consensus than a simple first-past-the-post general election, and to give judges greater independence from political parties and the like.
I have a little personal interest in this subject. My late father was appointed a judge by Reagan (back when there were more tests for competence and experience rather than ideology) and ran for re-election twice. (Third time they gave up and he was unopposed.)
The first guy that ran against him was a rather ineffectual leftist (but a gentleman) who denounced as an out of touch elitist "spokesman for business interests." The next guy (who was emphatically not a gentleman) ran against him from the right, denouncing him as an out of touch liberal who was soft on crime. Might have done better if he hadn't had a run in with a Baptist minister who testified as a character witness for somebody he was prosecuting and called the minister an asshole to his face -- turned out the minister was the chairman of the South County Moral Majority (remember them?) chapter.
One of my friends said to me during the second race "Gene, I've known your dad for fifteen years and it's just amazing how much he's changed in the last six months."
Two points -- first, the public really have very little to go on. Each opponent presented a picture that had little to do with reality, and that were mutually contradictory.
Second, the worst judges my dad had as colleagues (bugged him even more than Rose Bird) were the prosecutors that Deukmejian and Wilson put on the bench. They're also the ones the public laps up.
funny - the only response to the challenge of pointing out actual judicial activism was "everone knows" - I guess it's one of those things like pornogrgaphy
While we're at it, I think getting rid of the jury system would be a great idea - Hollywood wouldn't like that though.
""...fascist cocksuckers like Clarence Thomas and Sam Alito..."
WOW!! I can't believe that I heartily agree with one of SLC's posts.
Comments closed June 08, 2008.
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Heads in the Sand
In Texas, not only are judges elected, but they can accept contributions from people having business before their court. I can't imagine that a contribution to the judge wouldn't have a positive effect on the verdict. But maybe I'm just too cynical.
Posted by fostert | May 25, 2008 11:14 AM