During the last presidential election, Michigan held elections for some Supreme Court Justices. One of the incumbents ran a series of ads in which he claimed that he got thus and such evidence in to support the conviction of X rapist or other criminal. His ads even had citations to the opinions and unreadable exerpts from the cases as window dressing. It sounded a lot like he was running for prosecutor. He lost. But it got me thinking. Is it ever a good idea to elect judges? Doesn’t the election process encourage just this kind of pandering? And doesn’t that kind of judicial campaign advertising give the whole justice system a black eye?
No.
Maybe, but I would be more likely to attribute it to human nature, rather than the system.
Yes.
How so?
The judge is running attack ads aimed at his opponent, right? Well, I would say that it is human nature to try and attack your opponent, rather than what he stands for. This often comes up in arguments.
I would have to say that the system of elections doesn’t encourage this kind of behavior. In a similar case, the existence of sharp rocks doesn’t pander towards slitting someone’s throat. Rather the fact that it is easier to make a claim then to prove something is the root cause, plus the desire to do so. Tell me, why do you think the electoral system supports this?
No no no. He wasn’t attacking his opponent here. He was simply bragging about his good results in cases. Results that favored one side (the prosecution) over another (the defense).
Electing judges encourages judges to campaign based on emotional and political ideas rather than on their qualifications as a judge. In this case, as I said in the OP, rather than claiming he got the right answer in cases, he was campaigning based on the idea that he was a good anti-crime advocate. But judges aren’t supposed to be advocates. They are supposed to decide cases based on the facts and the law.
How about the power to de-elect them?
I always abstain from voting for judges because I know absolutely nothing about them unless I have sat in their courtrooms (which occasion is rare, I’m happy to say). The statements in the voting pamphlet are not adequate to evaluate them, and campaigning for judgeships is, to my mind at least, unseemly. I think judges should be appointed. Then we can bitch and moan about the elected officials who appointed them. 
I do not believe it is good to elect judges in Michigan’s style.
I do believe it is good to subject them to the electorate in Colorado’s style: the governor appoints them, and then every so often they come up for a retention vote. Most people will automatically vote to retain; it takes a particularly useless or incompetent judge to acquire enough notice to lose a retention vote.
Not a bad compromise, really. Still presents worrisome resonances with the California Supreme Court in the mid-80s, especially with some people screaming for judge blood after the Schiavo case. http://releases.usnewswire.com/GetRelease.asp?id=45102. But hey, at least the process is set up to pick qualified judges instead of popular ones.
Here in Michigan, the key factor in the election of trial-level judges seems to be name recognition. So the child of a long-time judge has a great chance of becoming a judge even though:
- The parent might have been a poor judge;
- The child might have few qualifications for the job.
While I think that This Year’s Model is correct in that the system in Colorado is better than that in Michigan (and Alabama), I am not sure it goes far enough. By allowing a retention vote you allow people with little or no knowledge of the legal field to decide who they want as judges.
Not bad on the surface, but let us imagine that the electorate is interested in a ‘hanging judge’. There seems to me to be a large number of people who favour a conviction, any sort of conviction, rather than justice. I suspect a judge who convicts more often, and gives harsher sentences, is more likely to be re-affirmed than another.
A large number of people seem merely to want people punished for a crime. Guilt or innocence be damned. As soon as the finger of accusation is pointed, too many folk assume guilt. Even if a judge/jury finds innocence. A judge that finds guilt more often will appeal to these people.
:smack: Ah, now I understand! I thought you wear claiming that it encouraged them to put ads on TV, in which they claimed they were “better” than their opponents.
I did gloss over the system somewhat.
A commission consisting of both lawyers and non-lawyers sends a list of three names to the governor for a vacancy. He picks one. The retention votes occur in the first general election after that, and then following every 4-10 years, depending on the office. Another commission (again consisting of both lawyers and non-lawyers) prepares an evaluation prior to the vote, and recommends a yes or no on retention.
A hanging judge could certainly work through the system, but just being a hanging judge wouldn’t be enough. He/She would also have to display knowledge, competence, etc.
For those who are really interested, this (smallish) pdf lays it out pretty well.
In this last election, I didn’t see any of that. Although it wouldn’t surprise me. And BTW, the campaign I discussed in the OP arguably violated the Code of Judicial Conduct:
A few years ago I read an article about campaigning judges, including one judge who ran ads or flyers pointing out how many more people he had sentenced to death than his opponents. Though I’ll be damned if I find the cite tonight.
Back to the OP, IMO the main point is that judges above all are accountable to the Constitution, not the electorate or legislators. (well, in my perfect world they should be.) And the Constitution don’t vote. It can be changed, but it don’t vote.
It’s just a bad thing, seeing how we humans are edgy little creatures. Give the public a young white sweet-looking girl dead by the road and we ‘all’ scream for blood. But give us an old hooker by trade dying under exactly the same circumstances and we barely lift an eyebrow. Yet, the crime is the same and the punishment must be the same, if we are to be equal before the law.
If voters aren’t satisfied with punishment they should vote for legislators who will pass harsher laws.
The opinions that are hotlinked on this page, http://jtc.courts.mi.gov/misupremectdecisions.htm will give the reader an idea of the kind of person that can get elected judge here in Michigan. One can find many more here, http://jtc.courts.mi.gov/, if one follows the links in the left frame.
Crazy judges. We got 'em.
The method of appointment of judges has long been a bit of a problem. Perhaps the best system is that of appointment by the Executive (or the Legislature) for a fixed term, ten ratification by the voters.
So the elected officials makes the guy a judge, but every five years the ballot has a question “Shall Judge Roy Bean remain on the bench?” If the people say no, they another person is appointed.
New York State once had an neat system. Supreme Court judges (not justices) served a single non-renewable twenty-five year term. That appeals to me.
I like the long, non-renewable term idea. It seems to solve a lot of problems.
Iowa now operates on what is called the Missouri Plan of electing judges, both to the trial bench and the appellate courts. When there is a vacancy everyone who wants to be a judge submits themselves to a panel made up on lawyers selected by the state or local bar association and an equal number of non-lawyer citizens appointed by the governor (on recommendation of the local political poo-bahs) and chaired by a serving judge. The panel sends two names to the governor who appoints one until the next election. Judges serve a four year term and the question on the ballot is should the judge be retained in office. I can think of only one case when a judge was removed by the electorate. The State Supreme Court has removed a couple under its supervisory power and one I can think of was removed by operation of law after he was caught propositioning female criminal defendants. The system has been in place for some 30 or 35 years and works well, so far.
The former system was in form a straight election. It wasn’t because the lawyers had it rigged so there was only one candidate for each position. The fix required pretty complete cooperation by everyone involved, the lawyers, the lawyers who wanted to be judges and the serving judges. Every once in a while the local bar would pass the word to a serving judge that it was time for him to step down and the judge would refuse. This put everybody in a tough position since it required the bar to go public with their objections to the recalcitrant judge (in one case he was senile, in another a drunk and in a third case just so unpleasant that everybody was hartley sick of him and not a little bit afraid, too). The point is that the old straight election system worked because the lawyers and the local GOP and Dems had fixed the system. The hypocrisy of the old system and the heartburn when someone decided he wasn’t going to play ball lead to the present appointment-reelection system.
Interesting, according to the Iowa State Bar Association:
(Emphasis added.)
http://faculty.wartburg.edu/stein/ch10.htm
A stunning claim.
Not sure that this adds much to the discussion, I was just curious and looked it up. 