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Justice O'Connor Decries "Justice for Sale":

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.

Daniel San:
I agree that there is something unseemly about high-profile, negative, judicial races. But I do not see why those races are any more a treat to judicial independence than hearings before politician who are trying get commitments to rule in certain ways or to be sensitive to certain interests. Those hearings can get just a negative and dirty as election ads.

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.
11.16.2007 9:31am
Houston Lawyer:
The only thing worse than electing judges is having them appointed and free from voter influence.
11.16.2007 9:32am
LongSufferingRaidersFan (mail):
What Houston Lawyer said.
11.16.2007 9:36am
Brett Bellmore:
If judges are going to insist on making policy decisions in a democracy, then they're going to end up being elected in partisan elections; The people in a democracy will not forever tolerate having an oligarchy imposed upon them.

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.
11.16.2007 9:39am
Lugo:
Why is direct election of judges worse than direct election of state executive or legislative officials?
11.16.2007 9:40am
Just Dropping By (mail):
Why is direct election of judges worse than direct election of state executive or legislative officials?

Because the latter are supposed to be partisan advocates, whereas the former are supposed to be neutral.
11.16.2007 9:52am
mrshl (www):
"If judges are going to insist on making policy decisions in a democracy, then they're going to end up being elected in partisan elections."

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.
11.16.2007 9:53am
DJR:
The ignorance is astounding.
11.16.2007 9:54am
Monkberrymoon (mail):
The problem is that an appointment system is just as rife with influence-peddling and backroom deals -- at least with an election it's relatively open.
11.16.2007 10:06am
DJR:
Yes, Monkberrymoon, it's exactly the same thing, because everyone knows that in order to be appoined one must solicit donations from individuals and corporations, take out television ads, and create a platform of issues on which to campaign, all of which are perfectly reasonable things for judges to do.
11.16.2007 10:10am
PatHMV (mail) (www):
Why exactly does Justice O'Connor consider it inappropriate for "interest groups" to try to influence judicial elections? Why is it per se wrong for, say, a group of environmentalists to try to influence the general philosophy of the judiciary? The Justice does not seem to be complaining about individual litigants using the judicial election process to influence their particular case. Under the basic premise of the common law system, judges are supposed to be deciding what the law is and should be in the first instance, not just applying the law to particular cases. That part of their job is inherently responsible for making policy decisions.

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.
11.16.2007 10:16am
Marklar (mail):
I dont understand the flippancy about this.

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.
11.16.2007 10:24am
DJR:
If that's your only concern, PatHMV, you aren't thinking very hard. How about judges consciously or unconsciously tailoring their decisions to accord with the interests of prospective or past contributors? How about perceived or real prejudice to litigants who hire a lawyer affiliated with a party other than the judge's party? How about the pressure lawyers who appear before the judge might feel to contribute to his or her campaign?

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.
11.16.2007 10:26am
Cornellian (mail):
If judges are going to insist on making policy decisions in a democracy, then they're going to end up being elected in partisan elections; The people in a democracy will not forever tolerate having an oligarchy imposed upon them.


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.
11.16.2007 10:30am
Brett Bellmore:
It's true that judicial elections don't have a lot of merit in the first instance, because of voter ignorance. Their chief merit is when it comes to getting rid of judges who've done something really offensive and high profile, when they're up for reelection.

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.
11.16.2007 10:31am
Left Hander (mail):
In the recent Pennsylvania judicial elections (I believe it was the State Supreme Court), one of the candidates had a TV advertisement where he described himself as "a criminal defendant's worst nightmare." While the notion that a judge is tough on crime might appropriately resonate with the electorate, this particular statement was nothing less than shameful.
11.16.2007 10:37am
PatHMV (mail) (www):
Cornellian, do you think there is some sort of absolute law lurking in the background? Or do you understand that judges actually do create and shape the law itself.

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?
11.16.2007 10:40am
KenB (mail):
Nonpartisan elections are worse than partisan ones. As one of my PoliSci profs said many years ago, when all you know about a candidate is his or her political affiliation, you know very little, but at least you know something. If you take away party identification, then most voters will know nothing.

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.
11.16.2007 10:45am
Brett Bellmore:
The problem, Cornellian, is that on a wide range of issues that tend to come before state judges, the interests of the political class are systematically different from that of the citizenry. And the appointment process is sufficiently opaque that the fact that you're electing the people who are appointing the judges gives you essentially no leverage by which the citizenry can make sure that the judges aren't going to be biased towards the political class, rather than the citizens.

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?
11.16.2007 10:46am
Jeff Lebowski (mail):
Indiana has kind of a hybrid system. For the circuit courts of each county, judges are elected to six-year terms. There are no term limits.

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.
11.16.2007 10:48am
Monkberrymoon (mail):

because everyone knows that in order to be appoined one must solicit donations from individuals and corporations, take out television ads, and create a platform of issues on which to campaign, all of which are perfectly reasonable things for judges to do.


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).
11.16.2007 11:04am
Dave N (mail):
I think the question becomes, "Who is this judge accountable to and what do we do if the judge is not doing a good job?"

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.
11.16.2007 11:08am
Archon (mail):
Imagine that - the kings in black robes don't want to have to answer to the people and are complaining about it.

The Judiciary is America's monoarchy.
11.16.2007 11:11am
Andy Freeman (mail):
> everyone knows that in order to be appoined one must solicit donations from individuals and corporations, take out television ads, and create a platform of issues on which to campaign, all of which are perfectly reasonable things for judges to do.

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.
11.16.2007 11:14am
Tony Tutins (mail):
In Illinois too, judges were appointed by Machine politicians, and then ran on retention ballots. Enough no votes would mean that the judge would be looking for another career. Occasionally a particularly bad judge would be ousted via that method. There were alternate ways to get rid of a bad judge, however: I was once introduced to a distinguished-looking former jurist who had spent time in a Federal pen, after being convicted in Operation Greylord. But having to rely on the FBI and the US Attorney to get rid of the bad judges doesn't seem the best way.

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.
11.16.2007 11:18am
Mark Field (mail):
I don't mind a system in which judges are elected to their position originally. What causes most of the problem, IMO, is the re-election process. What that does is tend to negate the counter-majoritarian role judges are supposed to play. The solution, again IMO, is election for a single term with a set term limit -- say, 20 years. You could tweak this system by, for example, allowing the 20 years to be re-set if the judge moves up the ladder.
11.16.2007 11:24am
Bender (mail):
If we'd had elected judges in Massachusetts, the hidden collusion between certain members of the Commonwealth's supreme court and certain homosexual activists would have been open to public scrutiny and the current brouhaha over same-sex marriage would never have happened. Notice that court activism in this area has only occurred where judges are appointed and not elected. This puts me firmly in the camp supporting -- at the least -- strong popular/democratic control over the selection and retention of judges.
11.16.2007 11:27am
John A. Fleming (mail):
Well, Sheriff isn't really a partisan position, but we make them face the voters on a regular basis, and most people think that's OK. Power corrupts. Facing the voters keeps you humble, and reminds you who the boss is, who you work for. In my experience, electing judges allows We the People to get rid of the notorious ones. On the general rule that if a Judge is making headlines, something is wrong and needs fixing.

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.
11.16.2007 11:35am
Clayton E. Cramer (mail) (www):
If judges were actually judges, and not performing effectively superlegislative roles, it wouldn't matter so much if they were elected or not. Unfortunately, the judiciary has increasingly decided that they have the authority to overrule the legislatures, not just in situations where the U.S. or state constitutions clearly limit legislative authority, but whenever they don't like how the unwashed masses and their representatives decided. The last thing we need in a situation like this is to make the judges even less beholden to the voters.

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:

Justice Linda Copple Trout will join Chief Justice Gerald Schroeder in retiring before her term ends so her successor can be appointed by Otter, not chosen by voters.

Trout, 55, said Thursday that she will retire Aug. 31 after more than 25 years as an Idaho judge, 15 on the Supreme Court. She said she decided after her last election that she didn't have the energy for another campaign and she is more comfortable having the Idaho Judicial Council screen possible successors.

"There are a lot of problems with the system, but the biggest problem is people don't know how to make a choice on who would make a good judge," Trout said. "I want to give enough opportunity for my successor to get in there and get some experience and let people see them and their work product before they run for the seat."
So much for the Idaho Constitution, which clearly states:

The justices of the Supreme Court shall be elected by the electors of the state at large.
11.16.2007 11:39am
Thief (mail) (www):
Simple rule for judges: If you act like politicians, don't be surprised when you are treated like politicians.
11.16.2007 11:43am
PLR:
I agree entirely with Professor Adler and with this comment of DJR:
<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.
11.16.2007 12:03pm
Dave N (mail):
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.
A minor quibble. Justice O'Connor was elected as a state trial judge and had been appointed to the Arizona Court of Appeals when President Reagan named her to the U.S. Supreme Court.
11.16.2007 12:06pm
Larry Kettlepot (mail):
I for one welcome our unelected unaccountable unrestrainable unrecallable black-robed overlords.
11.16.2007 12:20pm
hattio1:
I'm curious who has lived and practiced under both systems, and if so, what they prefer. It seems like PLR has practiced at least somewhat in both Missouri and Illinois, and prefers appointed judges. I live in AK, and we also have appointed judges. Lord knows, the process is not perfect, and we have far too many judges who have not been in private (as opposed to government) practice, and far too many who are former DA's. It still seems to me that this is probably the better system, but I've never practiced in an elected judge state, and only lived in one for law school, IOW, I wasn't really paying that much attention to politics.
11.16.2007 12:25pm
pireader (mail):
Interesting that nobody here has referred to experience outside the United States.

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)?
11.16.2007 12:27pm
Zathras (mail):
The only way to have an informed electorate in judicial elections is to have attorneys be the only eligible voters. I'm not sure if that's constitutional (or wise), but I think it's worth exploring.
11.16.2007 12:37pm
gattsuru (mail) (www):
I can't get behind judicial appointments. The idea of the judiciary is to end up with separate branches of state, the legislature, the judicial branch, and the executive branch, and any one group can prevent a bad law from affecting the normal folk.

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.
11.16.2007 12:41pm
Duffy Pratt (mail):
The problem isn't so much state judges overturning legislative reforms. Instead, in many of these states, the "interest groups" are businesses or their proxies who are promoting tort reform. The judges then get elected on the basis of tort reform money, and if they want to keep their jobs they need to throw out all of those "frivolous" lawsuits that juries somehow think are worth millions. Thus, I think this whole issue has very little to do with whether judges are acting as judges or legislators.
11.16.2007 1:01pm
Concerned:
Advocating for the election of judges rests on the premise that the voters are informed, educated, and capable of selecting the right judges to objectively rule on the law. However most voters don't fit any of the above. They tend select judges based on (1) name, (2) political affiliation, or (3) ideology. Three things that are supposed to be irrelevant in the judiciary.

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.
11.16.2007 1:02pm
hattio1:
BTW, Somebody earlier commented on how Sherrif is generally a non-partisan post, but nobody has a problem with elections for that post. I would note that in at least one state where they appoint judges, there are no sherrifs, and the equivalent posts are appointed not elected.
11.16.2007 1:03pm
ejo:
Illinois has both-there are elected judges and appointed associate judges. having served on the judicial evaluation committe for the Chicago Bar in the past and observed great lawyers/people passed over for the usual crop of ex-state's attorneys and corporation counsel along with a smattering of children of politicians, it isn't a real stretch to say politics matter in appointments just as much as in elective situations.
11.16.2007 1:06pm
MDJD2B (mail):

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)?


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.
11.16.2007 1:12pm
Clayton E. Cramer (mail) (www):

Advocating for the election of judges rests on the premise that the voters are informed, educated, and capable of selecting the right judges to objectively rule on the law. However most voters don't fit any of the above. They tend select judges based on (1) name, (2) political affiliation, or (3) ideology. Three things that are supposed to be irrelevant in the judiciary.

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.


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.
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?
11.16.2007 1:14pm
Mark Hagerman (mail):
Here in Iowa, we have regular elections on the retention of judges in office. I invariably vote a straight ticket to kick them all out.

My ideal is an amateur police force, amateur prosecutors (non-lawyers, by preference) and an amateur judiciary.
11.16.2007 1:20pm
marghlar:
There is some statistical evidence out there -- I don't have time to dig up the citation at the moment -- saying that state appellate judges are more likely to vote to affirm death sentences as elections draw nearer. Very scary to imagine that popular sentiment would be playing a role in that sort of decision.

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.
11.16.2007 1:21pm
marghlar:
They tend select judges based on (1) name, (2) political affiliation, or (3) ideology.

In chicago, the thing that matters most is an Irish surname -- for real. People actually change their names to take advantage of this.
11.16.2007 1:22pm
ejo:
ie. James "Fitzgerald" Smith?
11.16.2007 1:33pm
JunkYardLawDog (mail):
Justice O'Connor's Op-Ed made me glad yet again she is off the court. I also found repugnant her attacks on free speech and the first amendment by recommending commissions punish judges (and deprive the electorate of information) by regulating the speech of judicial candidates.

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"
11.16.2007 1:39pm
pete (mail) (www):
I think part of the problem with electing local judges is the sheer number of them on the ballot, at least here in Texas. Every few years I fill out a ballot with dozens of local judicial races on it and have no clue who to vote for in almost all of them and I do my homework and read up on the propositions and candidates beforehand. There is no reasonably easy way for the average person to find out enough about dozens of judicial races to make an informed vote. So I usually leave that part of the ballot blank except in the rare cases where I know something about the cadidates. Sometimes the unopposed candidates get my vote because I figure if they are unopposed then my vote can't hurt.
11.16.2007 1:43pm
pete (mail) (www):
I think part of the problem with electing local judges is the sheer number of them on the ballot, at least here in Texas. Every few years I fill out a ballot with dozens of local judicial races on it and have no clue who to vote for in almost all of them and I do my homework and read up on the propositions and candidates beforehand. There is no reasonably easy way for the average person to find out enough about dozens of judicial races to make an informed vote. So I usually leave that part of the ballot blank except in the rare cases where I know something about the cadidates. Sometimes the unopposed candidates get my vote because I figure if they are unopposed then my vote can't hurt.
11.16.2007 1:43pm
PLR:
BTW, Somebody earlier commented on how Sherrif is generally a non-partisan post, but nobody has a problem with elections for that post. I would note that in at least one state where they appoint judges, there are no sherrifs, and the equivalent posts are appointed not elected.

Sheriffs have few discretionary duties, it's largely an administrative position.
Illinois has both-there are elected judges and appointed associate judges. having served on the judicial evaluation committe for the Chicago Bar in the past and observed great lawyers/people passed over for the usual crop of ex-state's attorneys and corporation counsel along with a smattering of children of politicians, it isn't a real stretch to say politics matter in appointments just as much as in elective situations.

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.
11.16.2007 1:47pm
DangerMouse:
I think all judges should be elected, given what "judging" is understood to be today.

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.
11.16.2007 1:51pm
hattio1:
People seem to misunderstand the appointment process, at least as its done in AK. I would assume there is some mechanism in every judicial appointment state for preventing the Governor from appointing whoever he/she wants.
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.
11.16.2007 1:52pm
33yearprof:
The Minnesota State Bar Association has proposed to have a "elite" lawyer-dominated group select Judges for appointment, another "elite" lawyer-dominated group review their performance periodically (5-8 years), and keep the uninformed plebes completely out of it by eliminating elections. Judges will still be political animals (with long-standing and well-tested prejudices) but they will have new, more sophisticated handlers to please.

Oh, yes, there is also a proposal floating about that the term "Judge" be retired in favor of the now more descriptive "Your Lordship."
11.16.2007 1:58pm
Prufrock765 (mail):
I, too, like Lebowski, am a Hoosier, where we elect at the trial court and appoint at the upper levels. I don't think that electing trial court judges is too bad a system overall, although I think in many jurisdictions in this conservative state, many judges, hoping to prove themselves to the electorate, are too reflexively harsh on criminal sentencing. And the appointment process to the appeals level, vetted by an independent commission, seems to work well enough.

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.
11.16.2007 2:01pm
marghlar:
I think part of the problem with electing local judges is the sheer number of them on the ballot, at least here in Texas.

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.
11.16.2007 2:07pm
hattio1:
I forgot to mention that in AK, and in most other jurisdicitions, there are retention elections. How about a process by which judges who are reversed over say 50% of the time are automatically thrown off the bench. Or, probably better, anybody who is reversed over 50% on criminal cases and 50% on civil cases. We would have lost our two superior court judges last year. Not exactly a bad thing.
11.16.2007 2:23pm
Kelvin McCabe:
This debate reminds me of that old saw: "A good lawyer knows the law...a great lawyer knows the judge."

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.
11.16.2007 2:26pm
PLR:
I was wondering if there is anybody with experience with non-partisan elections for the trial bench? That seems like a possible compromise.

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.
11.16.2007 2:36pm
Lugo:
I love all the arguments here that judges shouldn't be elected because voters are ignorant, poorly educated, and incapable of selecting the "right" judges. Why should these ignoramuses be allowed to vote on anything, then? If they are too ignorant to pick their judiciary, then surely they are too ignorant to pick their executives and legislators. Let every post in every branch of government be appointed, and we won't have to worry about the dummies making the "wrong" choice ever again!
11.16.2007 2:55pm
PLR:
I love all the arguments here that judges shouldn't be elected because voters are ignorant, poorly educated, and incapable of selecting the "right" 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?
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?

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.
11.16.2007 3:17pm
Dave N (mail):
Indiana may have the best approach--elect the trial judges and appoint the appellate judges. After all, there is neither a "Democratic" nor "Republican" way to rule on a hearsay objection or otherwise conduct a trial.
11.16.2007 3:19pm
Cornellian (mail):
Judges do not judge anymore. They rule on ideology now. It's only fair the voters get a chance to determine that ideology.

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?
11.16.2007 3:37pm
John Herbison (mail):
It sounds as though Sandra O'Connor, one of the five wardheelers who anointed George W. Doofus, is shocked(!), shocked to learn that politics influences judging. Here's hoping that, for that kind of rank hypocrisy, she spends the hereafter hunting with Dick Cheney across the darkest regions of Hell.
11.16.2007 3:47pm
Just Dropping By (mail):
Maybe I'm biased because (A) I'm an attorney and (B) I've practiced exclusively in a state with merit-selection judges who are retained by popular vote, but I can only conclude that advocates for purely elected (and particularly partisan-elected) judges must not actually have to appear in front of them on a regular basis. The most important characteristics for a judge, IMHO, are strong administrative skills, familiarity with procedural/evidentiary rules, intelligence, and a courteous attitude. I see no basis for concluding that popular elections in the first instance are likely to result in the person who best exemplifies those characteristics winning public office. Retention elections, however, make sense for restraining cronyism, off-the-wall rulings, or mental/health problems.
11.16.2007 3:51pm
Lugo:
Who made those arguments?

What, are we too lazy to read today?


Brett Bellmore:
It's true that judicial elections don't have a lot of merit in the first instance, because of voter ignorance.

Zathras
The only way to have an informed electorate in judicial elections is to have attorneys be the only eligible voters.

Concerned
Advocating for the election of judges rests on the premise that the voters are informed, educated, and capable of selecting the right judges to objectively rule on the law. However most voters don't fit any of the above.

pete
There is no reasonably easy way for the average person to find out enough about dozens of judicial races to make an informed vote.
11.16.2007 3:59pm
Dh (mail):
Zathras--

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?
11.16.2007 3:59pm
Cornellian (mail):
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.

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.
11.16.2007 4:10pm
Aultimer:
Free speech absolutists will disagree, but real campaign finance reform (I like the UK scheduled free TV time model) would improve the elected judiciary as much or more than it would improve the other branches.
11.16.2007 4:13pm
pete (mail) (www):
Lugo, are you making the case that voters in my county are not ignorant of the qualifications of the dozens of judges up for election every other year?
11.16.2007 4:29pm
Dave Hardy (mail) (www):
Here in AZ the change from elected to appointed came just as I was beginning practice, but since the previously-elected ones got grandfathered into the system, I had plenty of experience with both.

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).
11.16.2007 4:37pm
Perseus (mail):
There is some statistical evidence out there -- I don't have time to dig up the citation at the moment -- saying that state appellate judges are more likely to vote to affirm death sentences as elections draw nearer. Very scary to imagine that popular sentiment would be playing a role in that sort of decision.

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.
11.16.2007 5:07pm
PLR:
I love all the arguments here that judges shouldn't be elected because voters are ignorant, poorly educated, and incapable of selecting the "right" judges.

What, are we too lazy to read today?

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.
11.16.2007 5:14pm
marghlar:
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 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.
11.16.2007 5:19pm
Perseus (mail):
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.

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?
11.16.2007 5:35pm
Clayton E. Cramer (mail) (www):

I love all the arguments here that judges shouldn't be elected because voters are ignorant, poorly educated, and incapable of selecting the "right" judges. Why should these ignoramuses be allowed to vote on anything, then?
Increasingly, we, and our elected representatives, are only allowed to pass laws that the elite doesn't find too objectionable. The willingness of judges to find what used to be felonies are now Constitutionally protected rights really shows the insanity of the situation.
11.16.2007 5:41pm
Clayton E. Cramer (mail) (www):

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.
How is that any different from the Democrats insisting that any judge that doesn't toe the party line about abortion will not be nominated?
11.16.2007 5:42pm
marghlar:
I'm maintaining nothing so strong -- I'm saying that most judges do try and follow the law, but that personal preferences sometimes get in the way, and that we should do whatever we can to help judges avoid the temptation to stray. Having their job security depend on their decisions is not a good way to help judges strive for impartiality.

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."
11.16.2007 5:47pm
Clayton E. Cramer (mail) (www):

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.
And often with not even a pretense of basing it on law. I remember one particular case where the person sentenced to death had forced his way into an old lady's apartment, raped, robbed, and murdered her, and Rose Bird's whining was that the Court could not in good conscience sentence a black man to death. His race was COMPLETELY irrelevant to the question of whether he was properly convicted and sentenced. She didn't even pretend that there was a racial bias in the trial. She was so full of emotion that she had to play the race card in a case where race was completely irrelevant.

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.
11.16.2007 5:47pm
PLR:
The willingness of judges to find what used to be felonies are now Constitutionally protected rights really shows the insanity of the situation.

Please provide a list of those felonies, and we will consider the extent of the damage to the Republic from such decisions. Gracias.
11.16.2007 6:06pm
Brian K (mail):
PLR,

i'm sure he's including the sodomy in that list.
11.16.2007 6:12pm
Bob from Ohio (mail):

it is only a matter of time before the judicial branch becomes just another political arm of the government


I think that particualar ship sailed some time ago, Justice O'Connor.
11.16.2007 6:30pm
Bender (mail):
Those who've cited Rose Bird as an example of the public rising up in righteous wrath to vote out an incompetent judge do not, unfortunately, have history or the facts on their side. Californians did not remove Rose Bird from the bench until one of her many egregious rulings upset the insurance industry enough that they financed a recall campaign. Despite the widespread public outrage against the woman's misbehavior, she'd probably have died on the bench if she hadn't picked on the wrong group of litigants. Still, Rose did eventually pay for her sins. In Massachusetts we've no recourse when dealing with vile judges.
11.16.2007 6:30pm
Bob from Ohio (mail):
Don't know how that extra "a" got in "Particular".

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.
11.16.2007 6:42pm
Cornellian (mail):
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.

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.
11.16.2007 6:47pm
Dave N (mail):
Bender,

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.
11.16.2007 6:50pm
Clayton E. Cramer (mail) (www):
PLR writes:


Please provide a list of those felonies, and we will consider the extent of the damage to the Republic from such decisions. Gracias.
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.
11.16.2007 6:50pm
Clayton E. Cramer (mail) (www):

Those who've cited Rose Bird as an example of the public rising up in righteous wrath to vote out an incompetent judge do not, unfortunately, have history or the facts on their side. Californians did not remove Rose Bird from the bench until one of her many egregious rulings upset the insurance industry enough that they financed a recall campaign. Despite the widespread public outrage against the woman's misbehavior, she'd probably have died on the bench if she hadn't picked on the wrong group of litigants.
I voted to not retain her. And trust me, for every person who voted NO on Rose Bird and most of her unindicted conspirators who was upset about the civil questions, there were thousands upset about her callous disregard for California's capital punishment statute.

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.
11.16.2007 6:59pm
Clayton E. Cramer (mail) (www):
Cornellian writes:

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.
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.
11.16.2007 7:05pm
Clayton E. Cramer (mail) (www):

I'm maintaining nothing so strong -- I'm saying that most judges do try and follow the law, but that personal preferences sometimes get in the way, and that we should do whatever we can to help judges avoid the temptation to stray. Having their job security depend on their decisions is not a good way to help judges strive for impartiality.
It may be the only way to remove judges who are clearly incapable of, or unwilling to follow the law, such as Judge Reinhardt, and Justice Rose Bird.
11.16.2007 7:07pm
Cornellian (mail):
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.
11.16.2007 7:17pm
Cornellian (mail):
I seem to recall that California has a system similar to one of the other states described earlier, namely that the Governor appoints the judges, who are then subject to periodic retention elections.

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?
11.16.2007 7:25pm
Evelyn M. Blaine (mail):
1. Clayton Cramer wrote:
The one that came before the California Supreme Court prohibited more than six unrelated persons from living together in the same apartment or house. [...] No, she wrote a decision that struck it down because such anticommune laws violated the right of free speech. What a joke.
I do not know this case, but are you sure that it wasn't a free association, rather than a free speech, issue? A free association claim, independent of the property-rights issue, seems quite reasonable. After all, if a legislature passed a law saying that no more than four unrelated people could travel in a bus on highways (with exceptions for school and charter buses), not out of any legitimate safety or nuisance concern but simply because they don't like hippies in VW buses, this would be an obvious violation of free association, even though people don't have individual property rights in the public highways.
11.16.2007 7:31pm
Evelyn M. Blaine (mail):
2. 33yearprof wrote:
Oh, yes, there is also a proposal floating about that the term "Judge" be retired in favor of the now more descriptive "Your Lordship."
Is this a joke? In any case, it reminds me of a question that I've been curious about but have never been able to find any information on: when did high court judges in the US start being referred to as "Your Honor" rather than as "Your Lordship"? Presumably around the time of the revolution, but did it happen suddenly? Were there differences from state to state?

(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.)
11.16.2007 7:41pm
Evelyn M. Blaine (mail):
2. 33yearprof wrote:
Oh, yes, there is also a proposal floating about that the term "Judge" be retired in favor of the now more descriptive "Your Lordship."
Is this a joke? In any case, it reminds me of a question that I've been curious about but have never been able to find any information on: when did high court judges in the US start being referred to as "Your Honor" rather than as "Your Lordship"? Presumably around the time of the revolution, but did it happen suddenly? Were there differences from state to state?

(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.)
11.16.2007 7:42pm
TerrencePhilip:
Egregious anecdotes drive this "debate:" on one side we see a few big-money campaigns and judges who've gotten too cozy or even taken bribes; on the other, arrogance and abuse from the likes of Manuel Real, Samuel B. Kent, etc. What the results are overall, it's hard to tell. We know that plaintiffs do better on average in state court than federal court, but unless you "know" which one is "right" that doesn't settle much. I'd like to see some systematic study of rulings comparing courts in states with different systems; but like studies of death penalty and crime rates, they are extremely difficult to compare (Minnesota's court system vs. Mississippi's, for example, might have profoundly different trends even if their method of judicial selection were identical).

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.
11.16.2007 7:47pm
Christopher Cooke (mail):
In California, Superior Court judges (trial courts) are directly elected. The justices on the Courts of Appeals and the State Supreme Court are subject to retention elections, the voters say "yeah" or "nay" about them keeping their jobs. I think the system works reasonably well as a balanced position between the federal system of lifetime appointments and the system in other states of direct contested elections of judges at all levels of the court system. I would extend the retention election process to the Superior Court, as well, however.

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.
11.16.2007 7:54pm
MarkField (mail):

I seem to recall that California has a system similar to one of the other states described earlier, namely that the Governor appoints the judges, who are then subject to periodic retention elections.

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?


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.
11.16.2007 7:55pm
DangerMouse:
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?

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.
11.16.2007 8:18pm
glangston (mail):
O'Connor has been both elected and appointed and served in all branches of the legislature. She seems to have survived the "system" and one would think she should be quite content with this success.

Maybe she was miffed with the appointment of Bush as President.
11.17.2007 12:01am
33yearprof:
Be ready if you care about keeping democracy in the process of Judge selection/retention for a big push by the "organized" bar (which, BTW, has never represented me) to relieve Judges of the "pressure " of accountability.

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.
11.17.2007 10:45am
Henri Le Compte (mail):
I just don't understand how having judges accountable to no one is going to make anything in our society better. The notion that judges are a "special" breed of person who can operate on some selfless plane of pure reason is ridiculous. How many times does mankind have to learn that the first step to tyranny is making the government impervious to the people?

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.
11.17.2007 11:00am
marghlar:
Terrence Philip:

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.
11.17.2007 11:08am
Billy Idle:
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.

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.
11.17.2007 4:12pm
Larry Fafarman (mail) (www):
IMO Justice O'Connor is a phony from the word go. She goes around the country giving lectures about judicial independence, as though the criticisms of the courts were not justified.
11.17.2007 6:05pm
New Pseudonym (mail):
I tend to think that apointment with some sort of retention election is preferable. Probably because I've only seen the two versions of election. Perhaps contested elections are the problem. As for partisan elections, here in Dallas County, TX (just to pile on) a little over a year ago we had twenty odd Republican judges. Now we have twenty odd Democrat judges. Whether you prefer the former or the latter, you can't pretend the election had anything to do with merit.

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.


It sounds as though Sandra O'Connor, one of the five wardheelers who anointed George W. Doofus, is shocked(!), shocked to learn that politics influences judging. Here's hoping that, for that kind of rank hypocrisy, she spends the hereafter hunting with Dick Cheney across the darkest regions of Hell.


Well, at least it's better that federal judges "anoint" the president of the United States than a group of political hacks from The Supreme Court of Florida.


The problem isn't so much state judges overturning legislative reforms. Instead, in many of these states, the "interest groups" are plaintiff's attorneys or their proxies who are promoting tort recovery. The judges then get elected on the basis of tort reform money, and if they want to keep their jobs they need to approve all of those "frivolous" lawsuits that juries somehow think are worth millions. Thus, I think this whole issue has very little to do with whether judges are acting as judges or legislators.
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.
11.17.2007 6:27pm
JunkYardLawDog (mail):
Contested elections are the best with full free speech rights of the participants. The fact that all republican judges get turned over for all democrat judges in an election cycle is a
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"
11.17.2007 8:37pm
Larry Fafarman (mail) (www):
Bad personal experience is often the only way that people can find out how bad a particular judge is, and most people do not have the means to inform the public of that bad experience. For example, when I sued the County of Los Angeles, the county attorney kept repeating as a sole defense that I did not give the county advance notice of intent to sue and I kept pointing out that the law did not require such notice for non-monetary lawsuits against the county, and the judge never reprimanded the county attorney for repeatedly making a frivolous defense. The judge finally dismissed my lawsuit on the basis of a claim that the county attorney never raised, that a statute of limitations had expired.
11.17.2007 9:22pm
Rich Rostrom (mail):
"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?"

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.
11.17.2007 11:23pm
Mark P. (mail):
We should stop having elected judges the day after appointed judges stop timing their resignations so as to give one particular political party the opportunity to select their replacements. Take Justice O'Connor, for example. She would have more credibility about the "politicization of the judiciary" if she had resigned while a Democrat was President.

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.
11.19.2007 1:10pm