The question of how to select the best judges has long stymied lawyers and academics alike. Politicians, on the other hand, have always had an easier time answering the question: Let them pick amongst their friends and supporters. In coal country, a new answer arose until the Supreme Court’s Caperton v. Massey decision: buy the bench with a ton of cash.
But Ken Lammers at CrimLaw has been working on an alternative, and has clearly put in a lot of time thinking outside the box. He’s come up with a very interesting proposal. These are the rough details, and Ken’s fleshed out the proposal far more than appears here, so it’s worth your time to go straight to the horses mouth to get the full idea.
But Ken Lammers at CrimLaw has been working on an alternative, and has clearly put in a lot of time thinking outside the box. He’s come up with a very interesting proposal. These are the rough details, and Ken’s fleshed out the proposal far more than appears here, so it’s worth your time to go straight to the horses mouth to get the full idea.
Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame).
Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate’s demeanor, perceived knowledge, and ability to communicate.
Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices – preferably not even from the same half of the State – and should not know the lawyer . . . The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge.
Think about it. It’s quite good. Merit based, with competence as tested by objective and subjective means. No, it’s not perfect, and can be picked apart at both of the subjective legs, since peer evaluation might put tough prosecutors at the mercy of former adversary defense lawyers or vice versa. Moreover, a zealous advocate might not be perceived as having the demeanor necessary to be a judge, when it’s somewhat unfair to take stock of a person in one position and apply it to another.
But consider the imperfections in light of a system that is far less perfect, far more prone to favoritism, leading to lazy, nasty, incompetent people sitting in judgment of others. The idea is to build a better mousetrap, even if there can be no perfect one. It seems that Ken’s process is far, far better than either the current elected or appointed systems that are used. The former, elected judges, is a joke of the worst order, The latter is rife with abuse. Even a moment’s thought about the current options makes Ken’s idea seem glowingly better.
I can hear in the back of my head a guy like Mark Bennett saying, anyone who presumes to judge another person isn’t fit for the job. Perhaps, but it defeats the point. Someone is going to want the job, and the question is whether she gets it because of competence or connections. We can decry anyone interested in judging, but it doesn’t move us forward since there will be judges in any event, and the problem is to get the best qualified people in position.
Imagine a judiciary built on ability rather than friendship or political contributions. I don’t impugn all judges, as there are many excellent, capable judges on the bench. And there are some mutts. Mean spirited and ignorant, clearly biased and devoid of soul. People who have had the experience of dealing with a bad judge leave with a hatred of the law and the system. It’s not just because they lost their case, as I’ve seen good judges send losers away with a better understanding of the law and a sense that, while they lost, they had their day in court and were given a fair hearing.
But Ken’s onto something here. And if the powerful and brilliant people of our nation were honest, they would give the Lammers Method some hard thought.
But consider the imperfections in light of a system that is far less perfect, far more prone to favoritism, leading to lazy, nasty, incompetent people sitting in judgment of others. The idea is to build a better mousetrap, even if there can be no perfect one. It seems that Ken’s process is far, far better than either the current elected or appointed systems that are used. The former, elected judges, is a joke of the worst order, The latter is rife with abuse. Even a moment’s thought about the current options makes Ken’s idea seem glowingly better.
I can hear in the back of my head a guy like Mark Bennett saying, anyone who presumes to judge another person isn’t fit for the job. Perhaps, but it defeats the point. Someone is going to want the job, and the question is whether she gets it because of competence or connections. We can decry anyone interested in judging, but it doesn’t move us forward since there will be judges in any event, and the problem is to get the best qualified people in position.
Imagine a judiciary built on ability rather than friendship or political contributions. I don’t impugn all judges, as there are many excellent, capable judges on the bench. And there are some mutts. Mean spirited and ignorant, clearly biased and devoid of soul. People who have had the experience of dealing with a bad judge leave with a hatred of the law and the system. It’s not just because they lost their case, as I’ve seen good judges send losers away with a better understanding of the law and a sense that, while they lost, they had their day in court and were given a fair hearing.
All-in-all, I think it’s a better system for selecting judges than I’ve seen anywhere. However, I doubt we shall ever see its like.Someone will cry, why not? Aside from the fact that the institution does not change direction easily, and the love that official people have for doing things the way they always have, there are strong vested interests at stake here. Debts to be paid. Power to be managed. Even the academics will ignore a better mousetrap if one of their own didn’t come up with it, because ideas from trench lawyers like Ken are too declasse to be given serious consideration.
But Ken’s onto something here. And if the powerful and brilliant people of our nation were honest, they would give the Lammers Method some hard thought.
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How about this? Anyone who wants to be a judge is automatically disqualified. Draw lots. The short straw gets the job, God help him or her.
Come to think of it, that’s a good solution for any job that wields power. The desire for power is disqualifying. What sort of person really wants to decide whether others live or die, go free or go to prison?
Keep them away from the bench, says I.
We elect our judges around here. If a man wants to be judge, he has to convince enough people who usually cannot be bothered to read a campaign poster that he’s the one for the job.
I think I would prefer cage fighting to select judges. Put the contestants in two-by-two and whoever lives gets the job. And all lawyers are automatically disqualified – not for lack of knowledge or conflict of interest but because of all that bothersome nuance.
Are you telling me you would pass up the chance to get rid of a few lawyers quick and dirty? Well, who would have ever suspected you to be so protective of the brothers.
Someone’s gotta watch out for yall. 🙂
In all seriousness, I’m all for limiting appointments, especially in the case of judges. (Diplomats and railroad commissioners doen’t have near the personal or influence a judge does.)
I would also impose a limit on the length a judge may serve on a given bench.
I like popular election of judges but that doesn’t guarantee the best judges and often boils down to a popularity contest or, even worse, a simple name-recogntion test.
I seriously find it quite odd that you, as a non-lawyer, prefer electing judges. To say it doesn’t “guarantee the best judge” is beyond question, considering the voters have no clue who the candidates are or why they should vote for one. Is it just the democratic urge to vote, despite having no basis to vote at all?
No, I can’t say that it’s an urge to vote.
As with any election, anyone voting should endeavor to learn as much as possible about the candidates and measures. /standard disclaimer
Anyone paying attention to local issues may well make an informed decision on a local judge. Unfortunately, those people make up a minority. (Though not necessary a minority of those people who actually vote.)
Any judges sitting “higher” than county need a better system than by-appointment for placement. I like the proposed system except for one thing: Only lawyers could ever be judges.
While a judge should have a firm grasp of the law and have sound reasoning skills, he shouldn’t have to be a lawyer first.
I suspect that while you know who, and why, you’re voting for a particular person to be judge, it isn’t what I would view as an informed decision. Not for lack of trying, but because the nature of the position precludes non-lawyers from making informed decisions. As for non-lawyer judges, we have them in Upstate New York and if you think lawyers are bad, they’re nothing compared to non-lawyer judges. It’s an ethical and legal disaster. Judges do not get to make up legal concepts whenever the mood strikes, and non-lawyer are totally ill-equipped.
It’s funny really. I’m of a similar mind regarding executives and, to a lesser extent, legislators (for both qualification and election).
I’ve heard all my life about the “right to vote” but have yet to see it enumerated or even granted save for a few laws.
This – and the franchise – is something that I’ve been giving serious consideration lately. I don’t think anything I could write here would really clarify my thoughts on it though.
(Also, for the record, in addition to not wanting to be a judge, “no”, I don’t think I could be a judge.)