Judicial Selection: Does Any Method Work?
The room was packed with the brightest of legal luminaries — from Sandra Day O'Connor and Stephen Breyer to the Chief Justice of Ghana. Academic and bar heavyweights were all around. A forum of self-congratulatory blather? Hardly. The real subject was nothing short of saving Western Civilization.
Heavy hitters indeed. If only Dirk had given a heads-up before this symposium, as this sounds like the sort of thing I would have like to attend. Note that I did not receive an engraved invitation.
Former Supreme Sandra Day O'Conner opened with a recap of the current judicial atmosphere:
O’Connor was not absolving the bench of the need for accountability, noting that the spread and debasement of judicial elections are at least as responsible for systemic woes as any particular ideology. “We’ve put cash in the courtroom, and it’s just wrong,” she said. “No other nation in the world has it.”
The retired justice led off the proceedings by reminiscing about her early days in Arizona, when she saw placards calling for the impeachment of then-Chief Justice Earl Warren. But recent years, she lamented, have seen far more virulent attacks — judges threatened with violence during the Terry Schiavo life support case in Florida, members of Congress advocating legislated circumscription of judicial authorities, a highly political proposal to slash the terms of sitting judges in Colorado, and, most notoriously, the recently failed “Jail4Judges” campaign in South Dakota to have citizen grand juries sit in judgment on members of the bench and actually imprison some based on individual rulings.
Americans are nothing if not imaginative in finding ways to get what they want. And what they want, apparently, is a judiciary whose decisions comport with the common man's common sense view of common wisdom. Justice O'Conner's point was that these attack on judicial independence impair the ability of judges to do their job without fear of public denigration or retaliation, often for lack of understanding of the law.
At the same time, independence is under assault internally, by the need for money to mount judicial campaigns and its insidious implications for the integrity of the judiciary.
One particularly tawdry manifestation of the downward electoral spiral that O’Connor recounted involved her recent conversation with “top-notch trial lawyers in Texas.” The group told her that their first action upon hearing of their assignment to a judge was to research their opposing counsels’ campaign donations to the jurist — so they could match them.
“It’s like nothing I’ve seen in my very long life,” she said. “Judicial independence is a bedrock principle, and we’re losing it.”
Justice Breyer then noted that the flip side of the equation, appointment of judges rather than election, offers no panacea either.
Breyer similarly bemoaned the decline of respect for judges within the commonweal, though he stressed that non-elective systems could be just as corrupted. “That might be worse because everyone appoints his cousin.”
He recounted a trip to Russia soon after the ascent of Boris Yeltsin where he heard about “telephone justice” — the practice of officeholders with judicial appointment powers “calling judges and telling them how to vote.” But America has at least the “appearance” of the same problem, he added, “because half the country thinks judges decide cases any way they want.”
The lawprofs then took over with proposals to cure the disease.
[Widener School of Law Professor Michael] Dimino called for a compromise — the imposition of “lengthy, nonrenewable term limits” for state judges, which he said would balance their need for “decisional independence” against fears that they’d devolve into the equivalent of “pollsters.”
Dimino suggested that we do things backwards in New York, where trial level judges should be appointed (rather than elected, as they now are) and Court of Appeals judges should be elected (rather than appointed, as they now are), since the rulings of the latter create the precedent that are "more akin to those of a governing body."
This proposal was shot down hard by James Sample, Counsel to the Brennan Center for Justice at NYU School of Law, who argued that Dimino's changes were a little too drastic to be a realistic possibility.
So he called for incremental reforms that would improve both electoral regimes and appointive systems.
Sample pitched public finance for campaigns, arguing that First Amendment concerns should be balanced against due process considerations for litigants who might well fear that they were being denied access to a fair and impartial venue. He also called for much stricter rules promoting recusals, to counter a spreading perception of “pay-to-play” justice.
“The rule of law needs a tourniquet,” he concluded, “and it needs it now.”
While Sample's proposal is slightly more pragmatic than Dimino's (though only slightly), it touches on only one of the negative influences on judicial selection, the "cash and carry" judiciary. While true that putting judges through the electoral process necessarily creates the need to beg for money for campaigns, thus giving rise to the appearance, if not reality, that judges will show their appreciation for campaign contributions in the exercise of their authority, it's not the only problem.
Sample overlooks the more fundamental problem that electing judges puts enormous control into the hands of a few party leaders, who (by definition) are unmitigated whores. The political process of becoming a party nominee reflects the worst of all worlds, internal favoritism by paying off political debts or favors with a judicial nomination without regard to merit, or even basic competence. Licking envelopes for a party boss is not a primary qualification for being a judge. It is, however, for being a judicial nominee.
So while the surface mechanics of judicial selection, the stuff we can all see and know about because it happens before our faces, might be changed to give the appearance of a less graft-ridden system, the ugly underbelly goes on unabated and untouched. Is it better to elect unqualified political hacks to the bench with public or private money?
And the second problem is the nature of popular election of judges itself. There is not now, nor has there ever been, any method devised that would enable the public to have the slightest clue who would be the best candidate for a judgeship. Put aside the speech limitations on judicial campaigning, an inherently silly endeavor designed to protect the appearance of integrity at the expense of actual integrity, and ask what Aunt Sadie knows about an individual's qualifications to be a judge?
A while back, the Feerick Commission tried to come up with ways to restore the appearance of integrity to the judicial election process. The solutions offered were worthless, and even then undercut by the political implications of giving the public any hope of basing their vote on any meaningful criteria.
I feel badly for the judges and potential judges who have to go through this process. It's not their fault that the process sucks, and it's not like they have an alternative, dignified and meaningful. Just because they do what is necessary to run for office doesn't make them unqualified, or bad people. It just doesn't do the opposite either.
So at the end of the day, we're left with the same problem. And no solutions. Perhaps this has a little something to do with the bad attitude toward the law?