Does it make sense to elect judges?

Great Debates
21

Yeah, but all judges are elected. You can be popularly elected, elected by a legislative body, or appointed by some executive fiat, but you’re still being elected by somebody, unless you have some way to make appointments automatic. :dubious:

If justices can be elected more easily by claiming to be tough on crime, maybe that’s because the state has a serious crime problem, & the judiciary has a lousy record of dealing with it. Why is it any worse to elect enforcers of the law popularly than to elect lawmakers popularly?

22

Because the whole idea of the judiciary is that they are insulated from temporary passions. What’s more, the measure of a good judge isn’t necessarily that the judge makes the electorate happy. The best judges sometimes have to do things that go against the will of the majority.

Did you read the ethics rules I cited earlier. That’d be a start in understanding how judges are supposed to act.

OTOH, you are right. As we see in the confirmation battles, having elected officials select judges only moves the debate one layer deeper. Instead of the judges grandstanding about being tough on crime and anti-defendant, the politicians use the selection process to grandstand for their own benefit.

23

I wholeheartedly agree with this, and I speak as a lawyer who ran for an Ohio local court judgeship and lost. The governor and insiders picking judges isn’t necessarily any better than the electorate picking them. The fact that very few sitting judges are turned out still is attributable to name recognition and inertia more than anything else.

24

Did you run on the “I’ll consistently rule against criminal defendants” ticket? :wink:

25

A friend of my Dad’s who did primarily civil work was appointed to fill a vacancy in the Texas Court of Criminal Appeals. My Dad, a defense attorney, was asking him how he was going to make the transition from doing civil work to judging criminal appeals. His friend shrugged and joked, “the way I see it, once you get the ol’ ‘harmless error’ rule down, everything else just falls into place!” :eek: :smiley:

26

LOL. It seems many judges think that way. A Hawaii Supreme Court Justice once told a story about how his philosophy as a trial judge was to rule in favor of the better lawyer because that lawyer would be defending the decision on appeal. :eek: :eek:

27

A more thoughtful response:

  1. You are equivocating here, and not very convincingly. Your own usage gives you away. “You can be elected. . . elected. . . or appointed[.]” :rolleyes: While it is true that there are various ways of selecting or choosing judges, and it is also true that all of them involve some person or group of people making the choice, they are not all popular elections. I doubt anyone, including you, understood the OP to be using the word election in the broad sense you are using it here. A debater’s point at best.

  2. Your broader point is valid though. Yes, we have to pick judges somehow, and we certainly don’t want them picking themselves. The question is: which method will be most likely to select the most qualified people for the job. That was my question in the OP, and your answer simply begs that question. :smiley:
    Each methods has its own set of strengths and flaws.

Popular election
Weaknesses include probability that judges who are unskilled, activist, corrupt, or biased will be selected. The general public lacks the resources to evaluate a judge’s skills, tends to focus on issues instead of qualifications, responds to media advertising instead of the candidate’s record, and will vote for judges that are likely to favor the majority’s side in their decisions.

Strengths include lower risk that all judges will share the views of the other branches or be drawn only from elite political circles.

Executive appointment
Weaknesses include probability that the executive will appoint judges who are political allies, those who are part of the establishment. Very unlikely that an unknown or member of a competing faction will be appointed or that non-politicians will be appointed.

Strengths include speed and ability to select the best candidate (instead of the least controversial one).

Legislative appointment

Weaknesses include the probability that the controlling majority will appoint only its own political allies and that only members of elite political circles will be appointed. Because judges review legislation, it is less likely that judges who have expressed views contrary to the prevailing faction will be appointed.

Strengths include greater likelihood that judges will be evaluated based on their judging skills or record as a judge instead of popularity or success of advertising.

Mixed appointment schemes try to develop checks and balances in order to insure against some of the weaknesses while pooling strengths. Of course, it’s all politics, so hegemony seems inevitable. Moreover, the pluralistic approach that most mixed schemes entail pretty much guarantee that we won’t get the best judges, but only the most politically acceptable judges. A camel is a horse that was designed by a committee.

Because law enforcement is an executive function. Law application is a judicial function. I’d vote for a sheriff who said he was tough on crime. I’m afraid of a judge who tells me war stories about how he “got in” evidence in order to save the conviction of a rapist. The rules are there to make sure that everyone gets a fair trial. If you change the rules on an ad hoc basis in order to “get” the bad guys, you’ll wind up getting a bunch of innocent guys too. And that sucks.

The hope with appointments is that name recognition is not the basis on which judges get *into *office. We hope that those who choose judges look at judicial qualifications instead of tv commercials that depict the judge looking judicial. If they stay in because people recognize their names and they haven’t been involved in a huge public scandal or removed for ethical breaches, half the battle has been won. In case it’s not clear from my posts so far, I’m not a big fan of retention elections either. They lead to the same kinds of problems as electing judges in the first place. I think they are an acceptable compromise, but if I were setting up a system, that wouldn’t be it.

28

Seriously, though. What was your pitch? How did you attempt to distinguish yourself from the other candidates. When I lived in Vegas, a guy ran for sheriff with the lone slogan: “He’s qualified!” I think that my losing judicial campaign would be based on the same premise–vote for **Gfactor **, he doesn’t suck any more than the other candidates, and he’s stopped having (non-consensual) sex with animals (except for the occasional goat–but that’s part of an SDMB ritual). What? Now there’s a goat-felching litmus test? I’m shocked :eek: I bet it’s because I’m a ;j This is a high-tech lynching.

29

But it is impossible to remove politics from the appointment of judges. In my opinion, so impossible that it’s not even worth trying. The Missouri Plan (which I recognize from Spavined Gelding’s post that Colorado’s system is a version of) seems best to me. You remove partisan politics as much as is possible; the mixture of lawyers and non-lawyers on the commissions removes insider bias as much as is possible; the retention vote allows the voters to remove the jackass who imposes maximum fines for being drunk in public in Leadville on a Saturday night. It seems to me that the Plan is simply a system of compromises. Best we can do, I think.

30

It comes pretty close. That’s why I said it was an acceptable compromise. Yeah, it’s pretty tough to come up with a perfect system. Here is how they do it in Hawaii:

Though this system appears to resolve many of the problems we are talking about, in my experience, it resolves few of them. The judiciary is insulated from popular whim in a way that it isn’t in states with elections, the difference is difficult to notice in practice.

31

The obvious problem there is that the same commission that nominates the judges is also the commission that chooses whether to retain them.

I guess I don’t see the same problem with retention votes that you do. Perhaps it’s just the history of the way things have gone in Colorado since I moved here (1991); judges haven’t been ejected from office due to politics. As a liberal in a conservative state, I think I would have noticed.

32

California has a similar system, and a while back, several justices were removed because of politics. http://en.wikipedia.org/wiki/Rose_Bird. It is rare, but I think the stark fist of removal must be on the mind of every Justice when deciding politically charged cases.

33

Bird and the other two justices removed did not allow the “stark fist of removal” to affect their votes. They still voted against the death penalty. I would hope that if I were ever appointed a judge, I would have the same courage of my convictions.

34

I meant since then. :wink:

I hope so too. But that’s my hope. I notice that Bird and crew’s replacements followed the will of the people, or had different convictions.

And, BTW, my point was simply that while “judges haven’t been ejected from office due to politics,” in Colorado, they have been elsewhere.

Also, it wasn’t just about the death penalty–it was about :eek: big business not liking Bird’s opinions about state tort law.

35

Different convictions, I should think, as they were appointed by a conservative governor.

I’m fairly convinced that Bird was probably incompentent. It was the other judges’ bad luck to be caught up in the turmoil.

I’ll admit, you make a point. I do, however, believe that the occasional judge being caught up in the turmoil is worth the value of a retention vote.

36

And I can live with the retention vote. Wanna get some coffee now? :smiley:

37

No, thanks. I’ll be getting up at four - I think I should avoid caffeine. Well, if the voters approve.

38

Ok. Fine. Somebody bring in the goat. It’s going to be a long night.

39

That’s classified info I’m saving that info for my tell all book, “How NOT to run a local political campaign.” :slight_smile:

40

I’ve one. Competitive examination. That’s how the magistrates are selected at the first place in France. People with the best results at the exam enter the school. People with the best grades during school have the first pick at the available jobs, if I’m not mistaken.