Should State Judges be Appointed?

December 15, 2016 § 7 Comments

Phillip Thomas addresses the question of appointed vs. elected judges in a post on his Mississippi Litigation Review and Commentary blog earlier this month. The post was based on a Clarion-Ledger article.

One point of alarm to Mr. Thomas is a survey showing that 50% of judges believed contributions to judicial candidates do influence decisions. As for me, as a state trial judge, I have never been asked to participate in such a survey, or, at least, I have never responded to such a survey if the opportunity were actually presented. So let me say for myself that I do not believe that contributions influence trial court decisions, but I do believe that they certainly do give reasonable people reason to believe that they do. The statistics reported by the Clarion-Ledger bear that out.

One of the many flaws of an elected judiciary is that it forces judges and judicial candidates to have to raise money to run. There is no such thing as a successful election campaign without adequate funds to pay for signs, advertising, and all the other trappings necessary to get one’s name out to the electorate and to energize them to vote. With money comes at least the appearance of influence. Lawyers know and understand that no judicial candidate can solicit or accept contributions directly; that must be done through an independent committee, and the candidateĀ is not supposed to be allowed access to the financial reports. I am confident that the public, however, does not understand this. Some other drawbacks:

  • Judicial candidates should only be able to promise to be fair, to be dedicated, and to follow the law. Yet, we hear candidates promising to be tough on crime and criminals, or to be friends of law enforcement, when the job of a judge may demand setting a prisoner loose, or to rule against law enforcement officers. A judge really has no friend other than the law itself when called upon to rule.
  • Voters in this part of the world can be swayed to vote against “liberal” judges, and to vote for “conservative” judges without really understanding what those terms imply in practice in our courts. Is a judge “liberal” because he sets aside a clearly erroneous guilty verdict? Or is he doing exactly what the law requires of him? And is she “conservative” because she denies custody to a drug-addicted mother? Or is she doing exactly what the law requires of her?
  • PACS have introduced vicious attack ads into our judicial races. Lawyers view them critically and get the misleading and often false accusations. But voters pummeled with attack ad after attack ad often figure that where there’s smoke …
  • Our judicial races have become non-partisan in name only. I leave it to you to consider the evidence and draw your own conclusions.

There are other flaws in the judicial election process that you can add for yourself.

So, is the solution to appoint state judges? At first blush, that would appear a viable solution. After all, it works arguably well at the federal level. Life appointment in federal court assures judicial independence. With the advice and consent of the Senate as a check, the federal judiciary remains for the most part balanced. It could possibly work the same way at the state level, but here are some concerns:

  • In a one-party system such as we have in Mississippi, the governor pretty much gets to appoint whomever he chooses. A corrupt governor could turn judicial appointments into a cash cow (Note: this statement is purely hypothetical; I am not referring to any past, present, or future governor(s)).
  • Favoritism and political affiliation can overrule merit and experience.
  • An appointing authority with an agenda can ensure that he or she will have enough votes on the appellate court to enact it. That’s less of an issue at the trial level, but it’s a possibility.

Again, there are other flaws in an appointed system, too.

Some states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel. That does not rule out some of the negatives mentioned above.

Other states have tried to strike a medium by providing for initial election or appointment for a term, and then requiring the incumbent to stand for a “retention” election at the conclusion of the term. If the vote is more than 50% to retain, then the incumbent continues in office; if less than 50%, then he or she stands for re-election with likely opposition. An obvious negative is that it replaces one election with two, with all the concomitant equipage of elections.

Still other states have employed variations on the foregoing themes. All have admirable as well as questionable qualities.

Bottom line is that there is no clear-cut, most advantageous approach.

InĀ 1817, when the debate first arose over what form of judicial selection would be most likely to ensure judicial independence and integrity in our Mississippi courts. The decision back then, and in every successive constitutional debate, has been to retain the elected judiciary.

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