f/k/a . . . the archives

May 28, 2008

would an educated public improve judicial elections?

Filed under: lawyer news or ethics — David Giacalone @ 10:21 am

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:

ooh neg “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.

tiny check 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.”

For haiku based on talent rather than cronyism, you can always count on f/k/a. Here are a trio from friend John Stevenson, from the latest edition of Upstate Dim Sum:

favorite cashier
i have brought
exact change

tumbler of water
the rainbow ends
in a handful of pills

slight pressure
of her hand
the stars brighten

…. by John StevensonUpstate Dim Sum (Vol. 2008/1)

6 Comments

  1. [...] Would an educated public improve judicial elections? – F/K/A If you teach them, they will vote better. [...]

    Comment by Gavel Grab » 5/28/08: The Blogging Judge and Other Blog Entries — May 28, 2008 @ 4:15 pm

  2. Oh, maaaan, don’t get me started on term limits!

    Comment by Anne — May 28, 2008 @ 9:23 pm

  3. Hi, Anne. Did you mean “Term Limits Schmerm Limits!”?

    Term limits is not a very important part of the above posting. I have not given much thought to judicial term limits, but the notion does not seem odious on its face. Why not tell potential judicial candidates that a judgeship is not meant to be a lifetime position — any more than being President of the USA? It certainly shouldn’t impinge on judicial independence (although some judges might be suspected of currying favor with their next boss). Since you have surely thought this issue through, please point us to a thoughtful analysis of the issue.

    Comment by David Giacalone — May 29, 2008 @ 6:31 am

  4. Because, like it or not, judges have many many administrative duties with the court. IMHO, the moment they finally figure out how to do these tasks, bzzt, term’s up!

    Will talk more about this and more (because who doesn’t find court administration fascinating?!) in the future on c-o-r.

    Comment by Anne — May 29, 2008 @ 5:27 pm

  5. Judicial elections will never be a good idea. The public knows too little of what makes a good judge and sees the entire judicial system as something of a enigma. The system is much better off having informed and qualified people at the helm who help select appointed judges.

    Comment by James Ferrell — May 30, 2008 @ 4:06 pm

  6. [...] David Giacalone at f/k/a parses a discussion about the benefits of increased voter education, and reasons that Merit [...]

    Comment by judgesonmerit.org » Merit Selection - A Better Solution — June 3, 2008 @ 8:04 am

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