Agreeing with Scott Greenfield of Simple Justice weblog is never much fun. On the other hand, I never like disagreeing with Anne Skove of Court-o-rama (especially since she recently featured f/k/a as Blog of the Week). Nonetheless, Scott was absolutely correct in his May 24th posting “Is Voter Education the Answer for Judges?,” in which he shows a healthy skepticism over the following recommendation from Anne, in her post “Judicial Selection Town Hall Meeting: The Wrap-Up” (May 22, 2008), on how to improve judicial elections:
Voter education (indeed, this was the one solution that everyone in the room felt strongly about, though this being a League of Women Voters event, we were preaching to the choir)
Scott says he’s always been disturbed by the voter-education suggestion. In his usual insightful and spritely manner, he tells us why. In sum:
“Educating the voters on the background of judges sounds as if it would provide plenty of meaningful information upon which the public could then vote with some legitimate basis. The problem is that it doesn’t. The judicial candidates can’t campaign based on how many defendants they plan to lock up, or how they hate plaintiffs in personal injury cases and plan to keep verdicts low. They can’t opine at all about how they would rule if elected, as that would be a flagrant violation of ethics.
“So we’re left with information that gives the appearance of being meaningful without offering any true insight at all.”
Scott offers more analysis and examples, and then has an informative discussion with Anne in the Comment section of his posting.
The f/k/a Gang has long supported having a well-structured appointment process (perhaps with term limits) over using elections to choose judges. See, e.g., our prior post, where we quote from Tom Kirkendall at Houston’s Clear Thinkers, who decries the Texas system for selecting judges — elections — as utterly unsupportable. Tom is, however, probably correct, when he notes that “Only a politician who is more interested in maintaining power than in improving the administration of justice would support the current flawed system” — and that reform is unlikely.
Scott noted that Anne’s group came up with the following qualifications for a good judge: “knowledge, experience, morals, impartiality, apolitical-ness, and following the law.” Similarly, in his Law Day remarks in 2005, Ken Standard, the President of the New York State Bar Association, said “We ask those who nominate, appoint or approve judges to select only the competent, the diligent, the even-tempered and fair minded.”
Call me an elitist, but judicial appointment committees — made up of serious, knowledgeable people who are willing to do their homework in vetting the candidates — seem far more likely to make good choices than party chairman and the electorate. A list of acceptable candidates then goes to responsible elected officials for nomination and confirmation.
When it comes to judicial elections, most people either Vote with Their Feet (they don’t show up to vote or don’t bother to pull a lever); or vote knowing virtually nothing about the candidates; or — far too often — vote based on their easily-manipulated viscera and prejudices. Judicial elections simply do not work well, and there seems to be little hope that a “public education” process would significantly improve the outcome.
Adam Liptak’s article over the weekend in the New York Times offers a recent example of the problems that come with having elected judges: “Rendering Justice, With One Eye on Re-election” (May 25, 2008).
For an excellent fictional account of what can go wrong (and really does happen) in judicial elections, you should read John Grisham’s latest novel, The Appeal (Doubleday, 2008). It’s the story of the buying of a seat on a state Supreme Court by interests wanting to put an end to large damage awards for injured plaintiffs. From unwarranted tarring of a supposedly “liberal” justice, to bringing in enormous amounts of out-of-state money (as well as out-of-state litigants who raise the gay marriage issue with a lawsuit), “There’s a lot of truth in this story,” according to Grisham. He says that “As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench.”
And see “Grisham’s ‘Appeal’ rules harshly on bought elections” (USAToday, Jan. 28, 2008). As the Los Angeles Times opined (Jan. 29, 2008):
“[I]n this presidential election year, [The Appeal is] a far more blunt, accurate and plain-spoken indictment of our contemporary political system’s real failings than you’re likely to find anywhere on the nonfiction lists.”
On the other hand, if you prefer a humorous look at a fictional judge, Prof. Yabut suggests reading Stuart Levine’s “Kill All the Lawyers: a Solomon vs. Lord Novel” (Bantam, 2006.). Levine’s description of the Honorable Alvin Elias Schwartz is close enough to reality to make a few judges and lawyers squirm:
“Judge Schwartz was propped on two pillows, either because his hemorrhoids were flaring up or because, at five foot three, he couldn’t see over the bench. Known as King of the Curmudgeons when he was younger, his disposition had gotten even worse with age. He now had the title of “senior judge,” meaning he was somewhere between Medicare and the mortuary. No longer permitted to preside over trials because of lousy hearing, a weak bladder, and chronic flatulence, he nonetheless handled bail hearings, motions, and arraignments.”
i have brought
tumbler of water
the rainbow ends
in a handful of pills
of her hand
the stars brighten
…. by John Stevenson – Upstate Dim Sum (Vol. 2008/1)