The idiocy of popular elections for judges

Judicial elections are stupid. There, I said it. Though it may be undemocratic (small 'd') to say this, the general public has no idea what makes a qualified judge. A judicial candidate shouldn't be selected on the same criteria as are regular political candidates -- i.e., I'm for family values, I'm against gun control, etc. In fact, not so long ago, it used to be against several canons of judicial ethics for a candidate to announce publicly his position on an issue. This makes sense -- a judge shouldn't be seen by litigants or the public as having staked out a position before considering the facts and law in a given case.

Additionally, retired SCOTUS Justice O'Connor has weighed in. "There is too much special interest money and influence in state court elections," O'Connor said recently. "It endangers the public's faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms." (Thanks to AP article cited below for these quotations)

The better way to select state judges is via merit selection: a committee reviews a slate of candidates and recommends one to the governor, who appoints the judge. After a given period, say two years, the judge is up for retention (not re-election: the only effect of the vote is a decision whether the judge stays or gets the boot). If the public is sufficiently incensed about the judge's performance, he's sent packing, whereupon the governor appoints a replacement and the process continues.

This allows the benefits of judicial elections -- a democratic (again, small 'd') check on the power of the judiciary -- without the costs associated with potentially unqualified by well-funded candidates displacing experienced judges.

Institutional memory is an important asset. It takes a few years for a judge to find his groove and to get familiar with the lay of the land. A judge who has a few years under his belt is far more valuable to the bar and to the public than a newbie.

Update: SCOTUS will hear a case dealing with judicial ethics and tangentially involving judicial campaign financing. It seems that a certain West Virginia Supreme Court justice declined to recuse himself from a case in which a $50m verdict against his largest campaign donor was overturned. Really, though, what's $50 million among friends? Read more about the case, Caperton v. Massey, here and here.

When SCOTUS does hear the case, it will be interesting to hear what Justice Scalia has to say about it; you'll recall that in 2004, he faced quite a bit of criticism when he failed to recuse himself from a case in which VPOTUS Cheney's energy policy was the issue. A few weeks before argument (might have the timing wrong; it might have been months), he went duck hunting and fishing with Cheney at a private hunting camp. Sure, he didn't share the same duck blind with Cheney, but what about the fishing boat?

Oh, by the way, speaking of Scalia, this just in: it seems he spent this past weekend hunting with the author of an amicus brief in the huge Pharma case, Wyeth v. Levine (summary here), which was argued today. Um, wow. That's about all that can be said.

And another update: NYT has this article about some of the late Chief Justice Rehnquist's papers. Interesting stuff; the reason I include it in this post is because of the discussion on judicial ethics and recusal. Rehnquist faced stiff criticism for failing to recuse from a case early in his tenure as Associate Justice, then seemingly reversed course and recused himself from the consideration of US v. Nixon (yes, that one).

The attack on merit selection for judges. - By Bert Brandenburg - Slate Magazine