Are you suggesting we actually choose our public officials based on merit? 
Hey, if you’re going to have a meritocracy, have a meritocracy! 
Besides having the populace or some combination of the other three branches elect (which word I’m using in the classical sense) judges, there are other conceivable methods:
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Judges could be appointed by their own branch. This could go “up” (e.g., State Supreme Court justices could be elected by the approval of state judges) as well as “down” (those already on the bench could choose who joins their number).
Do I have to tell you I have serious issues with this whole idea? :dubious: -
Judges could, in theory, be chosen by some method “untouched by human hands.” In America, the idea that it would really be anything but an anointing by somebody seems unthinkable. But a test might work, as our French friend suggests.
Hmmmm. . . yeah.
I’m attracted to the idea, but I’m not sure what kind of test would be appropriate. Maybe civil law jurisdictions are a better fit for this approach. But this is at least taking us back to the main point: Judges should be selected based on their ability to judge–not predictions of the outcomes of specific cases.
Of course, your judge who got in by a test should not then be free to do as he pleases. In a logocracy (society ruled by laws, not men), his decisions must then be vetted according to their adherence to fixed legal rules, & a pattern of defiance would merit an automatic dismissal. Again, I don’t know if that idea fits our American legal Weltanschauung. Though a country that claims to be ruled by laws, we cynically expect the enforcement of those laws to be made only at the discretion of personal authority. Ultimately, it’s no surprise that many Americans (at least among the politically disengaged) now believe that only arbitrary authority exists.
Personally, I’m not sure that judges as we know them ideally ought to exist at all, either in a democracy or a logocracy. Perhaps a sort of managing officer to supervise juries is more democratic (& more expensive ). An ideal logocracy might have rule by strict application of simple, unchanging laws that all citizens know (but is therefore nigh unreformable).
Pragmatically, we’re stuck with judges. I favor electing them democratically & to limited terms for the following reasons:
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The judicial/legal subculture should not be allowed to have complete authority over itself.
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Having the other two branches of government appoint judges corrupts the election process for those two branches. People will elect a bad commander-in-chief because they like his position on broad construction. :rolleyes:
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Having somebody else appoint judges, & letting judges serve indefinitely, both allow a lot of buck-passing. Everyone tries to claim deniability for “someone else’s decision,” & bad rulings stand for decades.
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Judges are the actual force of law, & the actual hard line of government, as experienced by those citizens who run afoul of it. They should be answerable to the people as much as legislators & executive officers.
If democracy is a bad idea here, where the rubber meets the road, then it really is a bad idea in general–which it may be. I find it amusing that so many can’t trust the populace to elect judges, but they accept the popular election of lawmakers.
Of course, I think the entire exclusionary rule is mass collusion after the fact on the part of the judiciary, so I’m pretty serious about radical judicial reform. ymmv.
Argh. …mass aiding & abetting after the fact on the part of the judiciary.
Anyway, I have a different take on the Fifth Amendment, & think that if the people could have elected the federal judiciary separately, a lot of what I consider abuses by SCOTUS could have been corrected quickly, so I have an agenda. Perhaps I overreact.
Here’s an anecdote:
The federal Eastern District of Texas is a really, really rural and backwater place. Juries in the region are heavily populated with minority and elderly residents who over the years became accustomed to granting, almost automatically, huge verdicts to just about any class action or mass tort plaintiff, especially against a big or out-of-town corporate defendant (pretty much every defendant, as there’s few big industries in most of the District). Now, the juries were equally generous in both federal and state court, but for years Texas state court was sneered at by the sophisticates as especially . . . corrupt may not be the word. Certainly politicized and “open to influence” due to the elective nature of the positions, campaign contributions, etc.
But the thing is . . . the federal court turned out not to be much better. Federal judgeships are not awarded through entirely apoltical processes either, and as the massive Tort Industry in the District grew, the most wealthy and political lawyers grew to be, not surprisingly, those from big plaintiffs’ tort firms. Et voila, time came to appoint federal judges, these tort-friendly lawyers were the leading candidates (doesn’t hurt that the Bar in E. Texas appears pretty incestuous and old-boy to begin with). So . . . the federal judges mostly end up being former tort-firm partners and (surprise, surprise) are trying cases presided over by their former partners. Plaintiffs tend to fare very well in these federal cases. Word is, by now, that when corporate defendants find themselves in a case that could go to either state or federal court in E. Texas (under the “diversity jurisdiction,” lots of tort cases could qualify for either), they are actually seeking out the “discredited” and “corrupt” state court system, on the grounds that state court judges have to show some balance as between plaintiffs and defendants, for fear that if they are too one-sided the other side will back a rival at the next election, whereas with life tenure, there is no real effective short-term check on a federal judge who is bound and determined to rule for his plaintiffs’ firm buddies.
I’m not saying the ability to buy influence from judges is a perfect system. But nor is a facially “influence free” system where when influence from various sources does, nonetheless, make itself known on the judges’ performance, there is no immediately effective countervailing remedy available.
To be fair, not many of those cases (I read through the last half-dozen or so) involved actual judicial incompetence. Substance abuse seemed to be the most prevalent (driving while intoxicated, alcoholism, taking two hits on a joint at a stones concert, etc.), followed by other ethical lapses.
I don’t see how elected judges would be any more or less prone to those things then appointed judges.
But for the record I’m against elected judges. I think the judiciary should be insulated from the whims of public opinion so that they’re free to make legally correct opinions that the public wouldn’t like.
A priori, they aren’t. But appointment committees *can * do things like check references, do background checks, and review qualifications. The public at large lacks the access to do most of this stuff. Instead, the public must digest campaign hype for most of the necessary information.
Of course, there is no assurance that a new judge won’t crack under pressure, become drunk with power, age badly, or get corrupted. And we’d hope that a judge a with a record of physically blocking children from entering schools or sexually harrassing employees wouldn’t make it to high office under either system. But as we’ve seen, neither system really excludes them.
::shudder:: Well, yeah. Michigan has always had a strong tradition of overkill in the punishment of minor drug offenses. John Sinclair got 10 years for selling two joints, for crying out loud, and that was before the war on drugs.
I live and practice law in Ohio, where virtually all judges - up to and including Supreme Court justices - are elected, usually to six-year terms. The “name game” is notorious here in Cuyahoga County (the greater Cleveland area) for Common Pleas and Court of Appeals judgeships. Those with particular names tend to be elected because their fathers, grandfathers or cousins were judges, and the voters are already familiar with the names. Sometimes you get good judges that way, remarkably enough; more often you get hacks.
I think some variation on the Missouri Plan, as discussed earlier, would be the best system for appointing judges. However, variations of this have been proposed here several times already statewide - and may be again soon - and have always failed. It’s attacked as antidemocratic and it’s said that “they want to take away your vote,” and it goes down in flames.
How will they be “insulated from the whims of public opinions” so as to make “legally correct” decisions? In a vacuum? You know, they don’t seal the judges in a polyethelyene bubble when the court closes at night, nor do judges submit to a mind-wipe upon nomination.
As noted in my example, judges who are insulated from the opinions, preferences, and whims of the grubby unwashed masses do not necessarily, or even probably, begin to rule with magisterial impartiality. Instead, they quite often begin answering to the whims of preexisting personal preference, or of cliques forming a small subset of the general public (such as, for instance, their former (and in many case, once-and-future) colleagues in the massively-profitable ambulance chasing plaintiffs’ bar. What is to “insulate” them from running into their old hunting buddies down at the country club, or at the political fundraiser (note that federal judgeships are often awarded to lawyers who have been active and successful in political activism, i.e., fundraising, for the party in power)?
And whence the implicit suggestion that “legally correct” decisions are more likely than not to be those that “the public wouldn’t like” (or vice versa)? We do live in a system that pays at least some lip-service to the collective wisdom of the populace as opposed to that of Platonic elites – which are, as I’ve suggested, never in any event made in the pure, disinterested, ivory-tower abstraction that you seem to suggest. Ruth Bader Ginsburg, to take an example, swims and has swum (as all of us do) in a particular personal and cultural milieu, which obviously informs her personal worldview, and (I would strongly submit, based on our empirical experience with her and other Justices), her judicial worldview. Now: the particular milieu in which RBG swims is a very particularized, narrow, peculiar, subset of American thought and mores. It is, for example, likely to be heavily skewed toward Georgetown cocktail parties, toward people who have graduate degrees and white-collar careers as opposed to those who don’t, toward those of a liberal/Democratic/secular-Jewish leaning then toward those of a conservative/Evangelical leaning, toward the law professoriat than toward economists or theologians. It is naive in the extreme to suggest that her judicial philiosophy and outcome-driven results are not influenced by the water in which she swims – can you imagine what she’d say if she turned up at one of those Georgetown parties and had to explain how, gosh, she personally loved homosexuals, but had been bound by the constitutional text and by precedent to conclude that the Constitution did not provide an absolute right to sodomy? This at a party where 95% of the attendees, say, believe that such a right would be a Very Good Thing? Well, if the judges are being influenced by such special-pleading and rent-seeking from the (minority) constituencies with which they surround themselves, and I submit that they certainly are, I can’t a priori say that placing them at the partial mercy of majoritarian policy preferences is unjustifiable, and might not produce more salutary (and, “legally correct”) outcomes, just as it has (in a very “rough justice” sense) in the Texas state courts.
It was only about 10 years ago here in Michigan that the Court of Appeals was required (by administrative order of the Michigan Supreme Court) to follow its own decisions. That’s right, before that, the law that would be applied to your case depended almost exclusively on which group of three politicians were selected as your panel. Michigan has a unified court of appeals. There are no appellate districts. Therefore, we would have fifteen opinions on an issue, all going different ways. All applying to the entire state. This, of course, gave trial judges the authority to apply whichever cases suited their needs.
The procedure required a court of appeals panel to follow the first published opinion on an issue. If they disagreed, they still had to follow it, but could say they were only deciding the way they did because of the prior opinion. If that happened, the Court could decide whether to consider the issue en banc. How’d that work out?
- Suddenly every opinion was getting published (this was way before opinions were available online) many of the opinions on controversial points contained enormous grammatical and spelling errors because they were rushed to press.
- I once wrote a brief for remand from federal court. The best way to do get remand on state law issues is to show that the law was unclear. So I surveyed the cases. Several failed to cite the first-issued opinion on point (the oh gosh, we didn’t notice, approach). One declined to follow the case because it was “different.” Several cited the case, recited the rule, and then applied the opposite rule.
- The en banc procedure was seldom invoked. Too much work? Nobody wants the law to be clear? Hard to say.
- The phenomenon is more pronounced when the issues are politically divisive. Tort threshold for no-fault cases, venue in tort cases (everyone wants to file in Wayne County (i.e., Detroit)), sovereign immunity, workers’ compensation bar. . .
Well . . . the unelected Court Of Appeals for the Federal Circuit has fundamental internal splits (and has reached completely panel-dependent divergent outcomes) on the completely non-political issue of how to construe patent claims. Every now and then they take a case en banc and, what do you know, can’t agree on a definitive resolution to their squabbles.
The unelected Ninth Circuit and unelected Fourth Circuit come to very different conclusions when applying the civil rights jurisprudence of the unelected Supreme Court.
Is it the election, then, that’s driving the unpredictability? Or the vesting judges (however they take office) with de facto plenary power over policy issues, and encouraging them to indulge personal preference and caprice (as in the alleged intelligentsia’s/legal academy’s lauding of idiosyncratic judges such as O’Conner, with her angels-on-the-head-of-a-pin distinction between “unconstitutional” and “constitutional” race-preferences at the same school, or of frankly biased judges such as Marshall who made it clear they never met a death row inmate they wouldn’t find a reason to set free, precedent notwithstanding)?
Federal Circuit courts are subject to horizontal stare decisis. Do you have some examples of what you are talking about? I’m not necessarily disputing what you say, just curious.
Here is an example of a study of the 6th Circuit’s performance on horizontal stare decisis. I haven’t read it through, but it looks like they aren’t doing that well, at least by Mr. Lee’s measures.
I think this may be a little OT as to the OP. But . . . I think you’re referring to the rule that one panel of an appeals court can’t overrule the decision of another panel. Well, but that doesn’t matter, because courts are reasonably notorious for being shy to “overrule” binding precedent explicitly even when empowered, and even when they ignore its holding and contradict its reasoning. Typically, they just claim that the precedent doesn’t apply, or isn’t factually-analogous, or was dicta, or . . . they ignore it. In my example, panels of the Federal Circuit were ignoring the *Vitronics[//i] panel decision which made it pretty clear that patent claims were construed, first and foremost, by reference to the patent specification. In the renegade line of later panel decisions (the Texas Digital line) a rival panel clique of the Federal Circuit basically said that dictionaries were the default preferred authority for claim interpretation. No one “overruled” anyone else, but you had discordant decisions, unpredictable outcomes, and disrespect for stare decisis pending an en banc intervention.
But how is this relevant directly to the OP? You provided an example in which elected (I think) judges were issuing inconsistent decisions on the same appellate court, ignoring settled law that ought to have been binding, and indulging their personal preference for how the law ought to be. I believe it happened exactly as you say on that elected court. My counterexample was of an unelected court, where exactly the same chaotic, and jurisprudentially unprincipled, judicial inconsistency and indecorous decisionmaking was happening. My only point is that I don’t see how the elective or non-elective nature of the respective judgeships is relevant to our respective accurate portrayals of “embarrassingly inconsistent or unhelpful adjudication,” which was the point of the OP.
For those playing along at home, here are two good summaries of the cases:
http://www.cooley.com/files/tbl_s24News\PDFUpload152\1477\ALERT_Phillips_AWH.pdf
http://www.stblaw.com/content/publications/pub518.pdf
[QUOTE=Huerta88But how is this relevant directly to the OP? You provided an example in which elected (I think) judges were issuing inconsistent decisions on the same appellate court, ignoring settled law that ought to have been binding, and indulging their personal preference for how the law ought to be. I believe it happened exactly as you say on that elected court. My counterexample was of an unelected court, where exactly the same chaotic, and jurisprudentially unprincipled, judicial inconsistency and indecorous decisionmaking was happening. My only point is that I don’t see how the elective or non-elective nature of the respective judgeships is relevant to our respective accurate portrayals of “embarrassingly inconsistent or unhelpful adjudication,” which was the point of the OP.[/QUOTE]
You are right, we have gotten off course. I’d apoligize to the OP, but hey, I’m it.