Friday, July 15, 2011

Should we elect judges?

I think Marc Carey has the best conservative blog in Kentucky, but I'll have to take issue with him on one matter.

"We elect judges in Kentucky," he says. "We must never give up that right, and we must pay very close attention to the mindset of those who would sit in judgement of our lives and liberty."

The occasion for the remark was a ruling in another state that Carey was upset about. But there are plenty of rulings by elected judges that sometimes don't seem to make much sense either. In fact, the decisions of voters on whom they elect their judge can sometimes seem rather odd.

In addition, he calls the ability of voters to elect judges a "right." Well, I'm not sure in what sense that is true, but if it were, it would not speak to the issue of whether it is a good idea. There are lots of things that are "rights" but are still not a good idea. Why was it, for example, that Kentucky did not have elected judges until 1976? Was there something the framers of Kentucky's original laws knew that we have forgotten?

Why is it that federal judges are not elected and never have been? Was there something the framers of our federal constitution knew that we don't?

To have the ability to recall judges, as they do for the Supreme Court in California, is a reasonable check on the judicial branch, but to have judges stand for reelection on a regular basis is a clear absurdity..

Recently in Kentucky, a court struck down a policy that prohibited judges from discussing issues in their races. The policy was put in place by judges (reasonably, I think) who believed that if they had to take a position on issues that would come before their courts, they could not rule impartially on cases involving those issues that came before them. On the other hand (and this is what The Family Foundation successfully argued in that case), voters have a right to know where they stand.

This is a dilemma--of judges who are supposed to be impartial but who are at the same time obliged to take a stand before voters on issues on which they might rule--that is created by virtue of the fact that they are elected at all.

It is particularly problematic at the local level, where, if a judge rules against a prominent or wealthy member of the community, that family can go after him in the next election and get him unseated. Exactly how does that contribute to impartial justice?

Judges should not be politicians, and--since the qualifications that go in to good jurisprudence are often at odds with the skills that go in to electioneering--the more you make them into good politicians, the poorer they become as judges.

Being in favor of electing judges is a great populist-sounding position to take, but you couldn't come up with a better way to ensure bad judges than electing them. The framers would have been appalled at this idea and we ought to be too.


One Brow said...


I agree. Missouri has some people who compain about thei system for appointing judges, but overall it has served missouri very well, and kep tlobbying and fundraising out of the judicial pocess.

Singring said...

Well I never - it seems that both OneBrow and myself agree with you, Martin!

The arguments you make are sound and should be compelling anyone who supports election of judges. As much as I admire most of the American political system, I have always found this aspect as well as the election of local law enforcement officers (are sherrifs still elected in the USA?) to be one of its weak points, because - just as you say - they allow interest groups of all persuasions to have a strong influence on the application of law and order. If you want a change on the law - you should do just that: elect politicians that will change the law. The law should not be perverted from the bench, unless there is some crass case where applying the law to the letter would be clearly the wrong thing to do. While government administration certainly doesn't do a perfect job in appointing judges and there is probably a lot of deal-making and political appointing that should be dealt with, I can't see how the outcome could be any worse than leaving the outcome to whoever can throw the most money in the race.

John Grisham's tells a fictional and of course hyperbolic story about how far this can pervert the course of justice in 'The Appeal' - it illustrates quite effectively what in principle can happen with such an elective system.

KyCobb said...

A good example of why Judges should not be elected was the recent travesty in W.V. A coal company wanted a decision against it reversed, so the owner spent millions, more than everyone else combined, to elect a new supreme court judge. The judge refused to recuse himself when the case came up on appeal, and of course cast the deciding vote for the company. it was such a naked example of justice being bought that the US Supreme Court ruled it unconstitutional.

Lisa Graas said...

Good thoughts. Marcus posted an example of a bad ruling. That might be the best way to show who the bad judges are. If we decide to elect only experienced judges whose prior rulings we can examine, that would be one positive thing we could do to make things better. As it stands, too few people realize the importance of these races.

Al Cross said...

Kentucky had elected judges long before 1976 (I think for almost its entire history) and they were partisan elections, though a candidate could run in both party primaries and that was the standard procedure. The 1975 Judicial Article made the elections non-partisan, required judges to be lawyers, abolished city-police and magistrates' courts, stripped county judges of judicial power and created a unified, four-tier judicial system headed by a new Supreme Court, among other things.