Retired Supreme Court Justice Sandra Day O'Connor is concerned about the influence of interest groups on state judicial elections.
Voters generally don't express much interest in the election of judges. This year, as in years past, voter turnout in elections for judges was very low. But judicial elections, which occur in some form in 39 states, are receiving growing attention from those who seek to influence them. In fact, motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.
Focusing on judicial elections in Pennsylvania, O'Connor recommends replacing partisan judicial elections with merit-based selection or some other non-partisan system, among other "good government"-style reforms.
In the long term, a commitment to judicial independence will only come from robust civics education, starting at a very young age. Today, only a little more than one-third of Americans can name the three branches of government--much less explain the balance of power among them. If we lose appreciation for our government's structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government. With the stakes so high, we cannot wait until the election cycle to educate the citizenry. We must start with civics education in our nation's schools.
I certainly agree that judicial elections are a problem - we elect all of our judges in Ohio - but I am skeptical that modest reforms will solve the underlying problems. Given how much is at stake in many state court decisions, so long as state judges are elected, I fear that the problems Justice O'Connor decries will persist. In my view, the only answer is to move away from direct election of judges.
For good or ill, appellate judges (and occasionally trial judges) often perform a quasi-legislative role. That is not likely to change. As a result, politicians and interest groups will naturally do what they can to influence judicial selection and decision-making. Other than a system of selecting judges by a random process, I don't know how we could avoid political maneuvering in the process.
Complaints about the electoral process are not reall complaints about the threat to independence. They are complaints about the public nature of the threat to independence.
The only answer to this that doesn't impose oligarchy is for judges to become far less inclined to impose their policy preferences under the flag of 'interpretation'. Needless to say, O'Conner does not have clean hands in that respect.
Because the latter are supposed to be partisan advocates, whereas the former are supposed to be neutral.
Of course, if you're going to insist on electing judges, they're going to end up making policy decisions more akin to those made by legislators. They have constituencies. And donors to satisfy. I think that's the point O'Connor is making.
Perhaps you are okay with having justice be a commodity, in which decisions are massaged and crafted with supporters in mind. But then it's not really justice. It's supply and demand.
Justice O'Connor's complaint only makes sense if she believes there is some natural law out there which judges are merely applying from case to case. But I don't believe her history on the bench reveals such an attitude.
The only concern I have about direct election of judges is the fear of favor being shown to their lawyer campaign contributors in particular cases.
I think judicial elections would be a great idea if people had any freaking clue about what they were voting for. But they really dont. In my state, we've almost ended up electing some folks with serious mental issues to appellate positions; they had attractive Anglicized/Irish names, and that was often enough for people. The only thing that stopped the juggernaut was when both parties (including the one ostensibly backing them) got behind their opponents.
The reason this is problematic is that unlike legislative or executive elections, where particularly problematic decisions can be reversed in one or two election cycles, we dont know when a particular issue will be up again. Meantime, the screwey decisions written into the law by problematic judges continue to distort state jurisprudence for an eternity.
And despite the impression we get in law school or blogs like this one, most litigation, and therefore the effect on most people's lives, IS at the state, not the federal level. Roe v. Wade and Bush v. Gore are the aberrations, not the norm.
Most of the time, judges do just apply the law. But if applying the law means a criminal defendant wins, elections allow that to be translated into the judge letting a criminal go free. Judges need to be independent of political concerns so they do not need to worry about whether they should apply the law or do what will get them more votes in the next election.
Seems to me that those inclined to complain about a judicial "oligarchy" are going to do so whether judges are elected or not.
If you think the role of judges is to apply the law, regardless of whether it's popular in any particular case, then you should not favor electing judges. If you don't like the judges who are appointed, then the electoral remedy is to replace the guy who appoints them.
Here in Michigan we've had a fair number of ballot initiatives that the political establishment disliked upheld by the state supreme court. I'm not sure that would have been the case if those justices were appointed rather than elected.
DJR... most of the things you mention are pretty much included in my stated concern. Sorry I didn't spell it all out for you. As for partisan issues, has the appointment of federal judges eliminated all concerns or perceptions of political favor? Or do we mention the name of the appointing president any time a controversial judicial decision is handed down by a federal judge?
In Texas, years ago we got a lawyer on the Supreme Court for no reason other than that his last name was he same as a well-regarded Senator, Yarborough. We used to have a state treasurer whose sole qualification was his name: Jesse James. More recently, we almost got somebody on the Supreme Court because his name is Gene Kelley. Had he won, my plan was to change my name to Roy Bean and run myself.
I'm not high on elections, but I'm not sure appointments would be much better.
It's been my perception that contraversial ballot measures are more likely to be upheld in states with elected judiciaries, but I have no hard numbers on this. Has anybody done a study on this subject?
For the Supreme Court of Indiana and the Court of Appeals of Indiana, judges are first appointed by the Governor (after being given three candidates by the Judicial Nominating Commission). At the next general election following two years of service, the judge is put on the ballot to the entire electorate of the state on whether the judge should be retained. If a judge is approved to continue, s/he will appear on the ballot again every 10 years, subject to whatever mandatory retirement age is in effect when the term begins.
I'm willing to bet that I'm in the minority in this state, knowing how judges are elected/selected and not being an attorney.
If one thinks that, in an appointment system, there are no "understood" deals or backroom shenannigans, then one is hopelessly naive. At least in a regime that has, oh heaven forfend, "television ads", we have an idea who wants the job. Everyone who wants to be a judge has a "platform" -- in an elective system, it's not a secret (or shouldn't be).
The corrollary question is, "How do we get the best possible lawyers on the bench?"
On the one hand, my state has had some highly contentious and nasty non-partisan judicial elections, which makes me think that an appointment system might be better.
On the other hand, the trial judge I most admire was elected in a contested election in a rural judicial district. He is the best judge I have ever appeared before. At the time of his election, he was the district attorney of the smallest county in the judicial district and his opponent was the district attorney of the largest. Yet he won a contested election.
At the time of his election, the governor of my state was from the same political party as the district attorney of the largest county. Would this current judge have been appointed had there been a "Missouri Plan" system in place? I don't think so.
The Judiciary is America's monoarchy.
Cute, but most folks who want to use the judiciary for their ends don't try to become judges themselves, they try to make sure that the correct folks become judges. In other words, I pay the appointment folks to appoint someone with the correct views.
I agree that selling judges as if they were brands of detergent is unseemly. The judicial canons should spell out what sorts of advertising judicial candidates can use, as well as who can donate to judicial campaigns.
Judge O'Conner comes from a long Arizona tradition of complaining about judge elections. They have it in Arizona, and all the government types hate it, but every time they tried to change it to appointments, the people declined to go along with it. Judge O'Conner should look to herself first. If she doesn't like special interests influencing judge elections, then she should advocate for Judges to stop injecting their policy preferences into their decisions.
I guess Judge O'Conner got tired of being constrained by the voters when she was in the Legislature, and so went into to the Federal Judiciary.
The Chief Justice of the Idaho Supreme Court resigned early a few months back, not because she needed to leave the job early, but by her own admission, because the voters were too stupid to pick a replacement:
So much for the Idaho Constitution, which clearly states:
<blockquote>The ignorance is astounding.</blockquote>
I practice in St. Louis, where judges are selected by a non-partisan plan that works reasonably well. I have a very fine view of southern Illinois on the other side of the river, where judges are elected and where the state courts are a cesspool of corruption favoring class action lawyers and personal injury lawyers.
My enlightened self-interest might be to revel in that corruption, since all those tort cases must be defended at standard rates even where resistance is futile. But I don't revel.
People who favor direct election of judges outside of rural areas must have enough dirty money to assure that the process will swing in their favor. Nothing else makes rational sense.
Across the industrialized countries, I believe it's very rare for judges, especially senior judges, to stand for election. Anybody know of significant examples to the contrary (outside the US)?
Putting judges on the bench with the elected executive branch or legislative branch folk does little more than turn them into partisan puppets, particularly if there's a recall mechanism. Without a recall mechanism, well, it can just get ugly.
Please don't confuse judges with politicians. Too many network news style one-liners above "if judges act like politicians, they should be elected as such" geesh, think this through before you solidify your opinions and reject valid points that go against them. Do you really want to have judges that *have* to rule on cases with the weight of an uninformed majority and special interests on their shoulders? They should be insulated from this.
In most countries they are not appointed either-- they are civil service. And the law is statutory, not judge-made, as it is here. They may have a broader role in interpreting facts (no juries) but are more constrained in interpreting and formulating law.
I don't know what sort of regulation, checks, or balances they have in Europe.
There are a lot of things that are supposed to be irrelevant to the judiciary, like deciding what the Constitution protects by what results a judge wants. I would agree that voters are woefully inadequately informed about their judges. I do my best to find out reasons to vote for or against a judge--and it is often quite difficult. But this comes down to H.L. Mencken's description of democracy as jackals leading jackasses. I'll take my chances with ignorant masses over power-mad elites.
Have you never read 9th Circus Court of Appeal Judge Reinhardt's bizarre opinions? Do you honestly think that judges always make decisions based on law, not their own personal political preferences?
My ideal is an amateur police force, amateur prosecutors (non-lawyers, by preference) and an amateur judiciary.
I also thoroughly agree with Mark Field that reelections are the bigger problem -- because they involve a judge having to think about how a particular decision will affect reelection chances. Making promises in an initial campaign or in an appointment hearing isn't the same kettle fish -- judges can dishonor such commitments without affecting their employment status.
Overall, I absolutely agree with Adler -- O'Connor's proposals are a bandaid for a broken process. At a minimum, reelection needs to end.
And for the record, I don't know who this "Marklar" is -- but he ain't me.
In chicago, the thing that matters most is an Irish surname -- for real. People actually change their names to take advantage of this.
I completely reject the elitist arguments that an elected judge is either a bad judge or gives the impression of being bad or lacks independence, etc. That's just bunk when you consider how much WORSE non-elected judge solutions are by comparison.
I'd rather have elected judges who tell you where they stand on issues and judicial philosophy than non-elected judges who get their "appointments" by being political sycophants and cronies of the politically powerful, and who owe their allegiance to back room deals and years of towing the unstated party line of the politically powerful.
However bad one might feel elected judges to be, the alternative of cronyism and allegiance to some unknown to the public political agenda and powerful elites is far far worse than any evil of elected judges. Compound cronyism with speech regulation and other first amendment violations and you get even worse. Patching that with the pretense of a retention election reminiscent of elections in the old soviet union and you've added a third layer of undemocratic evil to the pile.
Judge's who delude themselves into thinking they are somehow different from ordinary people (including ordinary politicians) and somehow intrinsically above such common things are some of the most dangerous elitists in the country. All they are doing with their delusions and pretenses at grandeur are seeking to rationalize their non-democratic ruling elitists by superior right/moral authority kind of thinking that they use to try and justify their attempts to protect their JOBS from the scrutiny of competition in the marketplace of ideas and free speech.
Disguising their attempts at not being held accountable in their jobs for their performance or lack thereof is what this is all about. Dressing this elitist pig up in the dress of high sounding ideals of truth, justice, and the american way doesn't turn this pig into Cinderella either. Judges who have to stay in touch with reality by being elected on partisan ballots and subject to full free speech rights of competitors don't issue opinions talking about the evolving standards of community justice unless those standards really are in fact the standards of the broad community and NOT their own personal policy preferences.
Says the "Dog"
Sheriffs have few discretionary duties, it's largely an administrative position.
Yes, it matters in the sense that I will never be on a slate of judicial nominees because I am not active in either of the two political parties. But a judge's being Republican or Democrat, or liberal or conservative, isn't going to matter much for the vast majority of the cases on the docket.
If my client is suing Anheuser-Busch for wrongful termination, I would much rather have a principled, pro-business judge foisted on me by a judicial commission than I would a judge who was elected to his position in an expensive judicial campaign and who has to stand for re-election.
Didn't all of the Democratic candidates last night proudly state that every judge they nominate would vote to uphold abortion? What's the difference between electing a President who gives such a pledge, and electing a judge who gives that pledge? Or a pledge to overturn Roe, or any other kind of result?
Judges do not judge anymore. They rule on ideology now. It's only fair the voters get a chance to determine that ideology.
O'Connor is only complaining about this, not because she believes that judges should have integrity in their decisions. She doesn't believe that at all, or else we wouldn't have to suffer through so many idiotic balancing tests and other legislative results she imposed on the nation. No, she's merely trying to cloak her past decisions as somehow better than any elected judge who renders a decision. She's trying to protect her record from the obvious legislative taint on it. O'Connor can go to hell.
In AK, any attorney who has practiced in the state for 5 years can nominate themselves for a judicial vacancy. Those names go to a judicial nominating committe. That committe is made up of approximately 1/2 lawyers (I believe selected by the bar association) and 1/2 non-lawyers (I believe selected by the Governor for appointed terms, ie., not necessarily selected by the current Governor). The nominating committe has to send up at least two names (but doesn't have to send any more than two). Recently our former Governor Murkowski was complaining that the two he was sent were not sufficient, and hinting that he might refuse to appoint either one. It never came to a court case, but the take of most lawyers was that per the constitution he was REQUIRED to appoint one of the people he's given. Not exactly a blank check for the Governor.
Oh, yes, there is also a proposal floating about that the term "Judge" be retired in favor of the now more descriptive "Your Lordship."
There is always the potential for abuse: in the county in which I live--but no longer practice--I have heard that the local Dems (not sure about the Repubs) require all county office holders--incl judges--to
kick back...err...I mean...voluntarily contribute 10% their salary to the local party.I was wondering if there is anybody with experience with non-partisan elections for the trial bench? That seems like a possible compromise.
It gets even worse than that -- elections are often scheduled, in many jurisdictions, so as to minimize turnout. Placing judicial elections off-cycle from those that bring out more voters is a very effective way to minimize the effect of any informed voting, while maximizing the effect of a political party's nominating power. Hence in Chicago, the second biggest factor (after having an Irish surname) in winning a judicial election is being the Democratic candidate.
I, too, am in Illinois and has others have mentioned, politically appointed positions in the first district (cook county) dont end up with the best qualified jurist, rather, routinely the most connected.
At the same time, in places like downstate Madison County (where large jury awards are apparantly the norm) millions of dollars are spent on judicial races. Whoever spent the millions and "won" is undoubtedly expecting a return on their investment or they wouldnt have ponied up the dough.
In both situations, whether appointed via cronyism or "bought" at the election booth, the level of competence and independence at the judiciary suffers. So the question becomes what is worse for the system: A judge who is simply incompetent but fair (i.e, applies their legal incompetence equally to all) or a judge who is competent, but biased?
I think i would prefer the former to the latter. At least then you get a fair shake, even if its a gamble that the judge will make an incorrect legal or evidentiary ruling during the case that causes you to lose. (and if the legal error is significant enough, can win you a remand on appeal for a second shot) whereas with the latter, they are competent enough to reach a predetermined outcome of the case and do it in such a way that no reversible error occurs and which craftily hides their inherent bias/political inclinations.
Of course, this is all just speculation. Im sure there are plenty of judges who were appointed via cronyism that actually turned out to be great judges and im sure there are plenty of elected judges who don't feel an obligation - or are morally or ethically opposed - to the idea they now need to "pay back" the one's who footed the bill to get them their seat. I do suspect that these gems are a rare breed.
And the judge who ran on a platform that he is "a criminal defendant's worst nightmare" needs to be b*#ch slapped repeatedly, preferrably by an exonerated criminal holding the bill of rights. A judge with that attitude will soon find that the defense bar would be quite aware of his pronounced bias and will SOJ (substitution of judge)him till the chief judge of that district/circuit has him moved to a different court or the other criminal judges who get his transfers peer pressure him/her into being fair.
Missouri has a non-partisan court plan for the major counties in and around St. Louis, Kansas City and Springfield that came into existence back in the 40s (I think) in response to rampant corruption, especially in Kansas City. It's not perfect, but it's way better than elections. In even numbered years some of the judges appear on the November ballot for an up or down vote on retention, but they are prohibited from campaigning (and virtually always are retained).
St. Louis City is still a place most defense lawyers prefer to avoid, but it's not because of the quality of the judges.
Who made those arguments? I have no strong opinion on which flavors of judges are the "right" ones ideologically, but I bet you do, don't you?
Competence is certainly a worthy attribute, but one shouldn't expect that election of judges by the public is going to increase competence. We don't elect people based on their competence, but on whether they mostly agree with us or talk a good game. And even if we did redefine human nature overnight and elect judges based on competence, there is very little easily available information to figure out who is competent and who isn't.
The premise is wrong and in any event the voters do get a "chance to determine that ideology" or do you think there is no difference between Alito and Ginsburg, or that presidential and senate candidates never raise judicial appointments as an issue in their election campaigns?
What, are we too lazy to read today?
Is it your position that a non-lawyer is unable to read, understand, and make value judgements about the merits of legal decisions and rulings made by judges?
You think so little of Roberts and Alito?
I wonder how enthusiastic will you will be about one of those judges "who tell you where they stand on issues" when you're a litigant and you discover the judge assigned to your case has already promised to rule against you during his last election campaign before your lawsuit was ever filed.
1) The present appointed ones are intellectually a far sight above the elected ones. There were some good elected ones, too, but the average caliber is much improved. (On the other hand, city court appointed and appoints whichever legal hack has the most local clout).
2) It is of course just substituting one form of politics for another. Instead of pitching to the voters, you pitch to the appointments committee, join lots of Bar activities, join groups that will lobby them for you, and then if you make the list you lobby the governor (helps if your firm was a major contributor).
Perhaps judges have learned a salutary lesson from the example of Her Most Effete Lordship, the late Rose Bird, who was removed from office as Chief Justice of the California Supreme Court (along with two other justices) by the mob in large part because of her steadfast refusal to impose the death penalty in every case that appeared before the court despite strong public support for it.
The reason voters are ignorant in the literal sense is because there is so little generally available information about judicial performance. The only people who really can assess a judge's performance are (a) court personnel (tiny group), (b) lawyers who appear before the judges regularly (sorry), (c) people who are in court as parties a lot (like repeat criminal offenders), and (d) nonlegal geeks whose hobby is reading the daily record (population approaching zero). So yes, the outcome is that people are incapable of making an informed decision.
Education has nothing to do with it.
We know what's really up here. There's this tiny handful of eccentric cases involving spilled coffee, burned flags, pregnant teens, gay rights, and religious iconography in public places that occasionally show up in the paper or on Van Susteren or CBS Radio with Andrew Cohen and rile up some people. Big nothing. Many judges will serve on the bench for years and never see such a case.
There's been one guy in the news recently who believes judges need to be more "responsive." Name is Musharraf or something like that.
The question is whether the development is actually "salutary" -- if a judge thinks case A is a proper subject for reversal at time T, then no longer thinks that at time T+1, and the only reason for the change is her expected political fortune, he is not ruling according to law.
The amount of popular support for the death penalty in general has no legal relevance to its appropriateness in any particular case, or to its constitutionality in general. If you agree that this is the case, I can't imagine why you wouldn't be worried that the voting patterns of judges display really overt sensitivity to popular pressure.
Unless, of course, you want judges to decide cases based on political commitments you agree with.
That presumes that judges are in fact following the law and constitution up to until election time rather than following their own personal views (or the pressures of the chattering classes). Why should we believe that presumption?
So, I think a good strategy is to combine (1) institutional protections for judicial impartiality with (2) strong public condemnation of judges who stray from that path. I don't think it is a good strategy to say, "Judges are imperfect, so I will throw up my hands and stop trying to encourage them to apply law rather than fiat."
I'm not a fan of the death penalty, for a lot of reasons. But until the elites completely abolish popular voting (as doubtless they will, one of these days), a judge in almost every American state will have to apply the law when it comes to the death penalty. In some cases, this may mean overturning a conviction. In most cases, it won't. If you aren't prepared to be a judge, don't take the job.
Please provide a list of those felonies, and we will consider the extent of the damage to the Republic from such decisions. Gracias.
i'm sure he's including the sodomy in that list.
I think that particualar ship sailed some time ago, Justice O'Connor.
We elect the President of the United States, a person who commands armies and nuclear weapons and fleets but we can't elect a trial judge in Pittsburgh?
Direct election of judges is a check on the judiciary. The other branches are checked in this manner, I see no reason why the judicial branch should be exempt.
The people have as much information on judges as they have for city council, county commisioner, and other local offices. Yet, we still have them vote on those positions.
Elites in Ohio try every few years to go to "merit" systems. Fortunately, the people here more sense.
It should not be exempt, assuming you believe the role of the judiciary is to do what is popular, rather than to apply the law.
Justice Bird was not recalled. She lost a retention election along with Justices Cruz Reynoso and Grodin.
And I agree with you that a retention election at least provides a recourse. Judge Stephen Reinhardt is completely untouchable--and just as liberal as Rose Bird ever was.
Overturning Texas's sodomy law caused I would say exactly zero damage to the Republic, and might even have reduced slightly the hypocrisy of a state that legalized sex with animals at the same that it made specifically homosexual sodomy unlawful. Mandating same-sex marriage may turn out to be destructive.
The damage, however, is to the notion that judges exist to decide matters of law, instead of acting as superlegislatures. This is one of the great difficulties when judges decide to substitute their own wisdom for the law. Similarly, the Supreme Court in Brown v. Board of Education (1954) at least had a legal basis for arguing that the states were obligated by the 14th Amendment to provide equal protection to blacks and whites. But there's another decision made about the same time striking down segregation in DC's schools--which weren't subject to the 14th Amendment. Consistent, sure. But this isn't law. This is just judges deciding that they aren't going to let law get in the way of want they want to do.
Some of us actually had even third reasons to regard her as an embarrassment. A number of cities had passed anticommune laws at the heights of the hippie era. The one that came before the California Supreme Court prohibited more than six unrelated persons from living together in the same apartment or house. Rose Bird could have written a decision that struck down this law based on the right of property owners. This at least has some connection to the question, and would have been my basis for doing so. But to admit that there are property rights, even subject to health and safety regulation (for example, limiting occupancy based on the number of people per square foot), is contrary to the "Property is Theft" mentality of California liberalism (except when it is their property). No, she wrote a decision that struck it down because such anticommune laws violated the right of free speech. What a joke.
If forty years ago, when state legislatures were repealing sodomy laws, judges had stepped in and ruled that the state legislatures didn't have the authority to do so, you would be singing a different tune. You would recognize that as a blatant tyrannical power grab.
On the contrary, I would be taking exactly the same position that I have taken previously in this thread, which is that such a situation is an argument for appointing different judges, not an argument for electing them.
So rather than venting about a lifetime appointment system, or a full blown Congressional style election system, is there anyone here who thinks the California approach does or does not address the objections people have to one system or the other?
(In any case, I don't know about "Your Lordship", but I definitely think that we should stop calling Messrs Alito, Thomas, Scalia, Kennedy, Breyer, Scalia and Stevens and Ms Ginsburg "associate justices" and start calling them "puisne justices". Because puisne is a really cool word, and a favourite of etymology geeks.)
(In any case, I don't know about "Your Lordship", but I definitely think that we should stop calling Messrs Alito, Thomas, Scalia, Kennedy, Breyer, Scalia and Stevens and Ms Ginsburg "associate justices" and start calling them "puisne justices". Because puisne is a really cool word, and a favourite of etymology geeks.)
Anecdote: a plaintiff's lawyer, now in his 50s, told me that when he first got out of law school, federal court was seen as a good place to be; they thought, "cool, I have a bigger case" and the judges were not bad. Now, plaintiffs do all they can to stay out of federal court.
Regarding Rose Bird's defeat in the retention election, like so many things in politics, the parties funding the campaign did so for reasons that had nothing to do with why she lost that election. She did lose because of her consistent and unyielding opposition to the death penalty. Grodin and Reynoso were lumped in with Bird, and lost for the same reason, but didn't always oppose the death penalty (although, they did in the majority of cases in which they ruled on).
However, one reason that the death penalty was overturned in so many cases under the Bird court was that many of the cases that the court considered involved the application of a death penalty statute that was written by popular initiative and which had many constitutionally suspect aspects to it.
But, I do agree that Bird (as opposed to Grodin and Reynoso) was resolutely opposed to the death penalty anyway, because she voted to overturn the sentence even in cases that came up under a revised statute that had far fewer problems with it. Bird was like Bork, an ideologue, albeit from the liberal side of the spectrum.
The CA system allows the Governor to make the appointment, but sets a deadline to make it. If the Governor fails to meet the deadline, the seat becomes an open one and anyone qualified can run. It's very rare for Governors to miss the deadline for Appellate or Supreme Court justices, but it happens sometimes at the Superior Court level.
Once the judge gets the appointment, s/he must stand for election at 12 year intervals (I'm simplifying here). At the Superior Court level, other candidates can and do run. At the appellate levels, the voters can vote them up or down, but there is no opposition candidate.
As I said above, my biggest concern is the retention election. I'd much rather see term limits as a method of assuring judicial independence.
You obviously didn't read my entire post. I said that all of the Democrats last night proudly proclaimed that any Court nominee would have to uphold Roe v. Wade.
If Presidents get to do that, why can't we just get rid of the middleman and elect them directly. You vote for your Senator now, right? State legislators don't appoint them anymore. Well, to hell with Presidential appointments of Judges then, for the same reason.
Judges are political. Maybe they weren't 50 years ago, but they are now. The problem has to be fixed. Voting is the only legitimate solution to the problem. Unless you're fine with living in a judicial tyranny.
Maybe she was miffed with the appointment of Bush as President.
Especially, accountability to the public.
No appellate court is going run a Judge out of office because he sympathizes with child molesters and send them all to rehab. Only the electorate is likely to do that. Like the Catholic Church, they'll conspire to cover the judicial majesty by reassigning him to complex civil litigation or probate dockets. After all, but for his little slip, he IS a well-educated, well-bred, status-quo loving, predictable quantity. Just what O'Connor wants in a judge.
I think "rule by judges" is a kind of paradigm that is secretly embraced by many on the Left. It combines perfectly their elitist aspirations and their fundamental laziness about having to take the time to actually convince people of their arguments.
If you are looking for less anecdotal evidence, you might start with the following article, which does try to draw meaningful comparisons across larger groups:
Steven Zeidman, To Elect or Not To Elect: A Case Study of Judicial Selection in New York City 1977–2002, 37 U. MICH. J.L. REFORM 791, 791 (2004).
It's not perfect, but it is a start.
Can we please stop this nonsense about some vague group being "elitist" while the other side is not? One could just as easily say that many on the Right are elitist and fundamentally lazy by their attachment to tradition, masking how they cannot actually convince people of their arguments. See what I did there?
This line of argument serves no purpose except to express that you don't like the side you don't like. "The Left" this and "the Left" that. We get it, you don't like "them." Next time try specific ideas and individuals.
Twenty years ago, Georgia had de jure nonpartisan elections, but de facto appointment. It was usual (but not invariable) for judges to resign mid term so that their replacement was appointed. They first ran as an incumbent. Elections were rarely contested (I understand this is not the case now, but I haven't lived in Georgia for 15 years), making it much like a retention election. If a judge was bad enough or controversial enought, the judge was likely to be opposed.
Well, at least it's better that federal judges "anoint" the president of the United States than a
group of political hacks fromThe Supreme Court of Florida.Edited to reflect the fact that the largest contributers in judicial elections are "
trial lawywers" The League for Justice and the American Way, Apple Pie and the Flag.GOOD thing. Its the staying in power too long that results in corruption more often than the judges who are bad right out of the gate.
I am amazed at all the pro retention election folks here who think that is something meaningful. retention elections of judges are almost as likely to turn out a corrupt/incomptent/biased/you name it judge as the single candidate elections in the old Soviet Union were to turn out a corrupt politician.
Retention elections are a complete joke. Everyone here has noted how judicial elections have very low (lower than low) voter turn out with most voters not even bothering to vote in them at all.
Who votes in them? The cronies of the judges and the political hacks and trial lawyers and their spouses. Guess what even the horribly bad judges and corrupt judges are almost always retained (again just like in the Soviet Union).
What's good about contested partisan elections with full free speech rights? It provides MORE information to the governed about the judicial branch of government. It makes voting in the judicial elections more informed and more popular for voter participation. It makes it far easier for bad judges or corrupt judges to be removed from office by voters. It also provides the good benefit of cleaning house of judges from time to time do to heavy partisan swings in the electorate. Cleaning house of judges (and all politicians) from time to time is a very good thing because as I said the corruption and elitism that breeds among judges and politicians who are in office for too long is the cause of more judicial bullshit than almost anything else.
O'Connor has led such an insulated life for the past 25 years or more that she has no concept of just how bad and corrupt in the real world are the policies which she advocates. Whatever the wrongs of partisan judicial election of judges, all the other alternatives are FAR worse for corruption, cronyism, you name it. Any system that requires suppression of free speech and counts on lack of voter knowledge (through speech regulation) to work cannot be anything but a corrupt evil that should be opposed everywhere by freedom loving people.
Says the "Dog"
Sure - we can elect a trial judge in Pittsburgh. Can we elect 30 trial judges in Pittsburgh? 864 Federal judges?
Who would have the time to read up on literally hundreds of candidates? Who, other than lawyers, could usefully assess judicial qualifications and performance, except in extreme cases?
I sympathize with those who object to judges being immune to the popular will. But direct election is no answer. The voters need to delegate the job of judge-picking, but they do need some say over it, too.
Perhaps the best method would be to have an elected Court Commission, in charge of selecting (and removing!) judges.
BTW, the comment is made that "judges are too political nowadays". In the past, judges, including SCotUS Justices, were often chosen from the ranks of practicing politicians: for instance, Warren, Black, Hughes, and Taft. Perhaps judges were less inclined to usurp the powers of elective officials when they had been elected officials.
It is beyond doubt that appointed judges are politicians by the very nature of the consistent and persistent timing of their resignations. As soon as that partisan practice stops, then maybe having an end to elections for judges will "de-politicize" the judiciary. But not before. It will never happen, however, because all judges are politicians.