A good politician is one who gets bought and stays bought.
— Old Mike from the train
Judges will be elected today. And we will elect them, though we will not select them. Some will be smart. Some will look judgeish, though that’s the closest they come to being qualified. Most will be too young, too inexperienced, too partisan to be worthy of the position. Some will prove bolder and better than expected. Some will stay bought.
Judge Kopf posted this video about electing judges the other day:
It’s funny, and largely true. But then, the introduction of attack ads provides us with some greater insight into who they are and what they “stand” for.
In 39 states, some or all judges must face some kind of election—often a partisan one. These races used to be about as interesting to watch as Bingo night. But now, it’s all Law and Order, and all the time. The ads are scarier than the shows they interrupt.
These new judicial attack ads are a consequence of a series of Supreme Court rulings that have allowed judicial elections to get noisier, nastier, and costlier, with no limit on outside spending by groups such as the Koch brothers-backed Americans for Prosperity.
The swipe at the Koch brothers is both gratuitous and not. There isn’t much traction for monied interests promoting judges because of their lack of partisanship, fairness and respect for constitutional rights. Indeed, judges have always noted that they’re supported by police unions. Rarely does a judge run for office based on the support of the American Civil Liberties Union.
Partisans of the flip-side argue that this is an outgrowth of the influence of money in judicial elections. It never struck me as all the likely that smart people would throw good money at judges, at least at the lower levels, as there wasn’t a sufficient ROI.
On the other hand, it never struck me that it would matter all that much, as we’ve been electing judges for the wrong reasons forever. Democratic areas elect the judges picked by the Democratic party boss, and as do Republicans on their turf. The real qualification for a judge is to curry favor with the boss, whether by contributing sufficiently to the financial welfare of the party, licking envelopes or showing sufficient dedication to the cause to capture the boss’ eye. The boss does not care about legal qualifications.
The boss cares that the judge is young enough to get a few terms out of the judge, because incumbents rarely lose, and will remember who put him in a robe. I’ve known judges who were dumber than bricks, who couldn’t speak English, who were so lazy that they could barely be bothered to show up in court and so crazy that every appearance was an adventure down the rabbit hole. But they were judges, because we elected them.
Judge Kopf noted, with regard to the video above,
It was funny. But, as the real ads become more and more numerous, misleading, vicious, and explicitly partisan, there is a serious consequence to judicial advertising. The public begins to see judges as nothing more than politicians in black dresses.
This expression of concern comes from the side of the controversy where respect for the integrity of the judiciary is the utmost concern. I made a collateral point when I testified before the Feerick Commission years ago, that I would rather have judges free to express their partisanship, their bias, rather than hide behind the veneer of respectability. If they are biased, let’s hear of it. Why would one prefer to be ignorant of the attitude of the person you will be appearing before rather than fully aware of how much he hates your side?
The reaction to my argument for judicial transparency by the judges on the Feerick Commission was universal dismissal. They preferred to remain wrapped up in the canons that precluded them from uttering anything remotely reflecting a reason to vote for, or against, them.
But this defensive posture by the sitting bench is both cynical and, frankly, a bit of a stretch. These are committees, so one angry man isn’t going to be in a position to hang his personal enemy out to dry. And most people who are appointed to these types of committees are more inclined to bend over backwards to offend no one. After all, people aren’t appointed to committees because they are bright, hard-working and forthright. They get there because they have managed to avoid offending anyone along the way. It’s like doing an interview with Larry King. There’s no better way to minimize the potential for an unpleasant question.
But one thing is for sure. Public confidence in judicial elections has now been addressed, and we need not waste any more time thinking about that little problem.
Appearance above all else is the core of public confidence. Little did they know that after Citizens United, outsiders would be fully capable of promoting their cause without being subject to the canons, putting out attack ads to explain how they would never rule in favor of a child molester, or, as reflected in a report by Emory profs Joanna Shepherd and Michael Kang:
the more campaign ads run in state judicial elections, the tougher these judges get on crime. But the real effect of these increasingly nasty ads, and the fundraising demands that come along with responding to these increasingly nasty ads, is an aggregate loss of confidence in the capacity of the judicial branch to be fair and unbiased.
This is a good thing. You see, before these nasty ads, people had no clue of the incipient bias in the judiciary. Now, they see it and, accordingly, lose confidence. It wasn’t that the judges were fair and unbiased before, but that the public had greater confidence in the fiction that they were.
The judicial branch of our tripartite government is referred to as “the least dangerous branch” by Alexander Hamilton in Federalist No. 78, because it has only one weapon at its disposal: integrity. Would you rather shake in fear of the judiciary or know that it’s shooting blanks?
And to any judge who takes offense to this characterization, nothing and no one compels you to do less than your best, fairest, most honorable service on the bench. As Old Mike from the train said, a good politician isn’t just one who gets bought, but one who stays bought. So you got the black dress. What you do with it is up to you.