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Former Supreme Court Justice Sandra
Day O'Connor made headlines recently by questioning the practice
in many states of holding elections for judicial posts. Speaking
at Georgetown University Law Center, Justice O'Connor criticized
the "politicizing" of judicial elections and bemoaned the
increasing amounts of money spent on judicial races. Her former
colleague Justice Stephen Breyer was also on hand, voicing
concern that elections threaten the "independence" and
"reputation" of state courts.
This critique of judicial elections
is a familiar one, but what's never explained is why the
reputation of state courts suffers from the involvement of the
people in the selection of judges.
Judges, after all, are not
infallible. They are prone to error or even abuse of power just
like other officeholders. In recent times, judges have also
shown an alarming propensity to legislate from the bench to rule
on business, social and regulatory questions that touch the
lives of millions of Americans but were traditionally considered
the domain of elected legislators. The most powerful check ‹
perhaps the only check ‹ on this sort of activism is an informed
electorate.
Until recently, the election of
judges was mainly a private affair confined only to members of
the state's legal and media establishment. Lawyers' groups like
State Bar Associations would give judicial candidates a "thumbs
up" or "thumbs down". And editorial boards, taking their cue
from the Bar, would hand out endorsements.
With voters now starting to notice,
many, including Justice O'Connor, want to remove "politics"
(meaning the people) from the equation by pushing a plan for
governors to choose from a list of candidates proposed by an
unelected outside commission accountable to no one. Anyone want
to guess who will dominate those commissions? Not small business
owners, whose livelihoods are often affected by judicial
decisions. Not ordinary citizens who see their communities
impacted by judicial activism. It will be made up of lawyers and
other elites.
Several states have already adopted
variations of this system, and in each case you'll find the deck
stacked in favor of lawyers. In Kansas, a majority of
commissioners (five out of nine) are selected by the State Bar.
Of the seven members of Missouri's Appellate Judicial
Commission, three are trial lawyers and a fourth (the current
state chief justice) is a member of the Missouri Association of
Trial Lawyers. In Tennessee, 14 of the 17 members of the
Judicial Selection Commission are lawyers, half trial lawyers.
Everyone agrees, of course, that
judges should remain independent. No one wants judicial
candidates handing out promises on how they would vote on
specific cases. But this does not mean complete independence
from the people who elect them. Voters are entitled to know what
principles and philosophy a judicial candidate will bring to the
bench. It is hardly beneath a judge or candidate to explain that
philosophy so citizens can make their own decisions and vote
accordingly.
Warnings that "powerful special
interests" might bankroll judicial candidates are often just
smoke screens designed to keep lawyers in control of the
process. And groups now springing up to oppose judicial
elections are hardly paragons of nonpartisan virtue. Justice at
Stake, one such group, is funded in part by billionaire George
Soros' Open Society Institute.
Apparently, it's OK for people on
the Forbes 400 list to get involved in judicial races. But
allowing a role for ordinary citizens, who Justice O'Connor
complains don't "understand what an independent judiciary is,"
violates some sacred principle of judicial independence.
Business groups are generally
assigned the villain's hat on politicizing judicial elections,
but in this game, the business community is really playing
catch-up.
Trial lawyers spend millions to help
elect judges likely to share their views on liability law and to
take a favorable view of large damage awards on which tort bar
thrives. They spend hundreds of millions more ($784 million
since 1990 according to the Center for Responsive Politics) to
finance congressional elections and consistently use this
influence to block any national legal reform legislation.
Critics of judicial elections should
be careful before claiming the moral high ground and faulting
others for participating in the process. The authors of many
state constitutions never meant for judicial candidates to be
insulated from the voters that's presumably why many state
supreme court justices are elected, rather than appointed. They
knew better than we that a dose of democracy is often just what
America's courts need. |
