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We Shouldn’t Vote for Judges

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The American justice system is supposed to be fair and objective. Yet it was very possibly neither according to the Supreme Court in the case of Caperton v. A.T. Massey Coal Co, perhaps the most important decision it has rendered this year.

The plaintiff, Hugh Caperton, brought a successful lawsuit alleging that A.T Massey Coal and its chief executive Don Blankenship drove Caperton’s company into bankruptcy. In the next election cycle, Blankenship spent $3 million to oppose a state Supreme Court justice he thought insufficiently favorable to his cause. When the challenger Blankenship backed won, he refused to recuse himself from the case. It was little wonder when he cast the deciding vote to overturn the first verdict.

What a depressing thought that justice in the 21st century can be sold to the highest bidder. In his dissent, Chief Justice Roberts seemed to tacitly acknowledge that money can be a corrupting influence on judges. That is perhaps why he raised practical concerns on implementation instead of attempting to argue that we should not be worried about the influence of campaign contributions on judges.

He lamented that “today’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?).”

I understand these concerns. So I propose a simple solution: stop making judges stand for election. Even with this decision, there is potential for all sorts of abuse. A judge ruling in a case now might not favor one side because he got campaign contributions from that side. Or so we hope. Remember the decision only says that excessive contributions compel a justice to step aside. But he may well favor one side over another because of other electoral concerns.

For example, a judge who owes his election to say the Religious Right could be a tad biased on cases involving the separation of church and state. In a racially divided area, a judge who wins because of high support from one ethnic group could be predisposed to favor litigants from that group lest he lose favor the next election cycle. Even if we expect that people who are essentially politicians will put aside their electoral concerns immediately after the election, the mere fact that they have to go before voters can create the perception of bias.

Having an independent judiciary is critical to our system of checks and balances. To maintain that system, the judiciary needs to be able to make unpopular decisions in some instances. There are cases brought to court, where the correct decision polls poorly with voters. For example, decisions protecting the rights of disfavored minority groups might cause a judge to lose an election even though it’s the correct decision legally.

During his confirmation hearings, Chief Justice Roberts compared judging to being a dispassionate umpire in a baseball game. Just imagine the havoc on the game if we let umpires stand for election each inning. Or imagine if we made the umpires take polls after each pitch to inform their decision as to whether to call a ball or a strike. Whichever team had the most fans at the game would get the most favorable umpires. Unfortunately, this is not terribly different from judicial systems in states where the judges have to raise money and go before voters.

There is, of course, a realm for shifting public opinion in the political process. That’s why we let people vote for who represents them in Congress and who serves in the White House. But do we really want our judges looking over their shoulders at polls before rendering a decision? Triangulation is bad enough when politicians use it. It simply does not belong in the judiciary.

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About Marcus Alexander Gadson

  • http://drdreadful.blogspot.com Dr Dreadful

    Being from Britain, where we do these things sensibly, I’ve always been at a loss as to why you Americans insist on making every public official from the district attorney to the street sweeper run for election rather than go through a screening and hiring process like the rest of us.

    One glance at the current make-up of any elected body of your choice – be it the House of Representatives in Washington or a random state chamber – makes it obvious that a lot of the people there are very far from being the best people for the job. There are parts of California, say, or of rural Kansas, where the people will elect anything so long as it has a (D) or an (R), respectively, after its name.

    But that, as you note, is politics and there’s a limit to the amount of damage any given politician can do. That’s the joy of the checks-and-balances system.

    Judges in federal courts, thankfully, are appointed – even if sometimes the people appointing them probably aren’t the most suitable or qualified to be doing so. If the notion of electing Supreme Court justices ever gains traction, that’s when you really need to start worrying.

  • Bliffle

    It always has been a distortion of good government to elect judges. They lose their independence and become pawns of special interests and demagogues. which is what the Founders were trying to protect us from when they designed a republic instead of a democracy.

  • http://www.EurocriticsMagazine.com Christopher Rose

    It’s bad enough having to put up with all the hypocritical crap that goes with contemporary politics all over this planet without having to cope with all those other elections.

    If you’re in the business of getting elected, you’re in politics, whether you’re a judge or a janitor. As the good Doctor said, hire ’em and fire ’em.

  • http://ruvysroost.blogspot.com Ruvy

    The problem with judges is that they are like noses – somebody’s gotta pick ’em.

    There are several ways around the problem, but none of them guarantee avoiding a nosebleed, the situation described in the article.

    One is to have some fine honest executive pick them, like Sarah Palin or Hot Rod Blagojecvich. Bear in mind that the lobbying to get the governor (or whatever the executive is called) to pick you can be at least as expensive as a political campaign.

    Then there is the elective route – described above.

    Israel uses a commission to pick judges – but what do you know? The commission becomes like a self-prepetuating board of directors, with the same like minded people dominating the commission and preventing any real variety of opinions from being represented on the judiciary.

    I don’t have any solutions. While it needn’t be that way, we might as well just fess up to the fact that no matter how we pick them, judges are still politicians, and politics will dominate both the selection of judges and the decisions they render.

  • http://ruvysroost.blogspot.com Ruvy