I believe I last ranted fully about elected judges in October 2014, in Judicial Selection: It’s Merit-Based in Arizona. (More recently there was some explaining about how many courts in Alabama ignored the same-sex mandate from the U.S. Supreme Court.) I do try to avoid same-subject posts, but I ran across Running for Their Robes and could not resist.
Running for Their Robes is a clip from Last Week Tonight with John Oliver, which appears on HBO on Sunday nights. Truly funny, and in my humble opinion, fresher and better than Colbert or Stewart! Fresher because, well, Mr. Oliver’s show is new, and better because he does in-depth work in a way that did not suit either The Colbert Report or The Daily Show.
We have lots of big problems in our country. (No, I don’t hate America! Really I don’t!!!) Some cannot be fixed easily, but some can.
Addressing climate change requires a level of commitment and lifestyle/economic change we cannot fully imagine. It won’t get easier with time. Truly, and we know this, we should have been on the matter at least as far back as 1992, when President George H.W. Bush was calling then Senator (and VP candidate) Al Gore “Ozone Man” because he focused on the environment. Still, I understand why we have done so little; it’ll be hard, hard work!
Race relations present another challenge. Race has been an issue in America since Europeans brought Africans to North America in 1619. We won’t solve that one soon, no matter how hard we may try. (Frankly, it seems like we don’t try very hard, but that’s an issue for another day!)
That all said, one of the easy fixes we can make involves not electing judges. Here’s a primer from the American Judicature Society about how merit selection—the alternative to elections—works, and why it’s the preferred alternative. With the other side, here’s former Michigan Chief Justice Clifford Taylor’s piece for the Heritage Foundation, Without Merit: Why “Merit” Selection Is the Wrong Way for States to Choose Judges. We provide; you decide!
Mr. Oliver says 39 states have judicial elections. The AJS reports slightly fewer states use merit selection. The overlap? States which use a blend of merit selection and elections. (In Arizona Supreme Court and Court of Appeals justices/judges are selected, as are trial court judges in larger counties; smaller counties still use the electoral process.)
Merit selection does not solve all problems. Someone is still doing the picking, and imperfect outcomes abound. That said, the federal system demonstrates well the merits of taking elections out of the judicial selection process.
Separate and apart from the wrongful nature of having campaign contributions play any role in a justice system which must be blind to such issues, there’s also the matter of how candidates for judicial office distinguish themselves. In most courts criminal cases predominate over civil disputes; thus, most candidates for judicial office run “I’m tough(er) on crime” campaigns. Well, fine, for nobody—I repeat, nobody—likes crime! That said, we have laws. Sometimes, when they are applied, outcomes don’t set well on 30 second ads. And if you’re a judge with worries about keeping your job, at best you may be thinking about how what you do will look in your opponent’s television commercials. Not good for justice!
Fixing the judicial selection process, nation-wide, is easy if it gets compared with climate change, race, or other big problems. Hell, we’re already well on the way to a fix. Alas, the change we need will not soon be on the way, for at least two reasons.
First, how we pick our judges does not rank high on anyone’s list of issues, save maybe mine! Second, it’s no accident that Judge Taylor wrote his piece for the Heritage Foundation. Big money likes judicial elections, for while merit selection seems like a top-down system designed to be controlled by powerful people, money matters so much that, now, the candidate with the highest level of financial support almost always wins. More’s the pity, when we live with a corrupted system of justice and can’t solve a problem that should represent low hanging fruit.