Anne over at Court-o-Rama indulges in another of the never-ending series of discussions of the “better way” to select judges, an age-old debate that has gone in more circles than a ferris wheel.  But one “point” that she raises has always disturbed me.  One of the “solutions” to the problem of asking the public to blindly vote for judges is

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)

Whenever a roomful of people agree on anything, you are almost always assured that the idea is flawed.  Sound ideas need to pass muster under critical analysis.  When nobody disagrees, nobody challenges the notion.  Is it because the idea is so utterly sound, so totally brilliant, that there’s nothing to question?  I don’t think so.

The idea that judicial candidates should provide their resume to the public so that there is something substantive to put out there, as opposed to voting for judges because they look like Judge Wapner, isn’t a bad idea.  It’s just not particularly helpful. 

Let’s assume that one candidate for the bench went to Harvard while the other went to Fordham.  Who wins?  Let’s say one was a criminal defense lawyer and the other was a prosecutor.  Who wins?  What if one worked for Biglaw and the other was a solo.  Who wins?

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.  Anne’s group came up with these qualifications for a good judge:

Goodness, according to our members, encompassed knowledge, experience, morals, impartiality, apolitical-ness, and following the law.

Not a single line in a resume (or curriculum vitae for the lawprofs reading) tells us any of these things.  One might assume that the lawyer from Harvard is smarter than the lawyer from Boalt Hall, but experience tells us that might not be at all true.  Should we end up with an entire bench made up of “tier 1” law school grads because of this?  Nobody thinks that’s the way to go, especially if they went to Yale.

Indeed, voter education may have the unintended consequence of preventing the best candidates from getting elected because the public will fall back on such irrelevant bits of hard information for lack of any legitimate basis to select one over another.  We could well find that the public will default to electing prosecutors rather than defense lawyers because they feel that prosecutors are more “moral”.  Do we want to create a paradigm where the public projects undeserved attributes onto candidates because they lack any better method?

I appreciate as much as the next guy that the problem the selecting judges is frustrating, and that every idea intended to help comes with a flip side that presents a negative.  But if nobody mentions the downside to these solutions, they can pass into the mythology of solutions without any challenge.  I’m just trying to prevent that from happening.