Gavel Gamut
By Jim Redwine
(Week of 29 February 2016)
THE POLITICS OF JUDGING
We elect a president every four years. We elect House members every two years and one third of the Senate every six years. We never elect any federal judge or federal magistrate or federal referee. Some of our states elect many of their judges. Some states elect some of their judges. However, even in states that claim to elect all of their judges, many persons who fill judicial roles, magistrates or hearing officers for example, are selected without general citizen input.
In those situations where judges are not elected, most citizens are excluded from the process while the executive and legislative branches of our federal and state governments select our judges. There is a general misperception that this so called “merit selection†removes the judiciary from the political process. Our current mud wrestling over the replacement of United States Supreme Court Justice Antonin Scalia is just the most recent evidence politics pervades merit selection. The difference between merit selection politics and electoral politics is, appointed judges are products of micro politics that eschews democracy.
This affront to our Separation of Powers has not produced judicial decisions free from political influence. From Marbury v. Madison to Dred Scott to Bush v. Gore to Citizens United and thousands of other cases both federal and state, politics has often driven judicial decisions. In fact, as Alexis de Tocqueville (1805 – 1859) so accurately observed, “In the United states, there is hardly a political question which does not sooner or later turn into a judicial one.†He might well have declared the corollary of this proposition to also be true: In America, judicial decisions are often driven by politics.
This is true whether judges are elected or appointed. The difference is, elected judges are chosen by the many, appointed judges by a few. Another important distinction is many appointed judges serve lengthy terms, some for life, whereas elected judges are subject to review at the next election.
Judges are people. That’s all we need to remember. Most may be good most of the time. Some may be corrupt, lazy, incompetent or crazy. It is the judge, not how she or he comes to the Bench, which controls their judgments. If we have certain reasonable criteria for being a judge then what matters most is that the third branch of our government be independent and fair, and, if not, that we can readily replace them.
Agreeing upon standards for judicial candidates should not be difficult. It is probably reasonable that they be American citizens, residents of the jurisdiction they seek to serve, free of criminal convictions, of a certain age, a college and law school graduate who has passed at least one Bar Examination, have a minimum number of years practicing law without ethical violations and be healthy enough to do the work. You may have other ideas. That’s fine, reasonable minds can come to suitable criteria.
My experience of being a judge, knowing judges and teaching judges leads me to the conclusion we are all about the same. If a judge meets reasonable qualifications and is of good character, he or she will most likely decide most cases fairly.
If I am correct that the judge, not the method of a judicial selection, determines judicial decisions, then we can concentrate on the method of selection with the objectives of enhancing both justice and democracy. I have a few suggestions. Of course, you might also.
