"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.