The 2008 election season is in full swing. Democrats and Republicans are jockeying for their constituents votes by pandering to their respective party’s base, and hoping that independent voters will put them over the top to get elected. In some states, like Washington, this is extended into the third branch of government – the Judiciary. The average citizen has no clue who these people really are, and what their supposed platform is. Most judges will not identify with a particular political party, but in a world where we need to label EVERYTHING, voters will find a way to figure out whether the judge is "conservative" or "liberal," and cast their vote accordingly.
Do voters truly understand what it means to be a "conservative" or "liberal" judge? Do they understand the true role of the Judiciary Branch? By electing judges, are voters diminishing the qualifications of a judge by only looking at their own self-interest as opposed to the overall qualifications of a particular judge? The Washington State Bar Association (WSBA), in its April 2008 edition, and Forbes Magazine, dated July 24, 2007, talked about this very subject. As the November 2008 elections approach, the debate over electing judges will become more hotly debated.
The WSBA was asked to address the issue of whether the State of Washington should continue to elect judges or switch to a commission process to appoint them? Today, 32 states and the District of Columbia use the commission process for the election of some, if not all, of their judges. According to the April 2008 edition of Bar News, printed by the WSBA: proponents of a commission process state that "[m]ost voters don’t know who the candidates are, what their qualifications are, or even what it takes to be a good judge. This is distorted further by the influence of significant dollars now pouring into judicial campaigns. Although candidates in high-profile positions such as the Supreme Court and Court of Appeals often gain greater exposure to the community through the press, they are also the positions that are most likely to be targeted by special interests. It will be very difficult to preserve the confidence of the public in the impartiality of the judiciary if those positions continue to be filled using an election process."
Conversely, opponents to a juducial commission process argue that by not electing judges, the "people’s" right to participate in the process will be severely limited. The WSBA appointed a commission of former judges, lawyers, and citizens to analyze this debate. The conclusion of this study group was that "a commission system will enhance the public’s ability to control the quality of the state’s judiciary. Instead of having most judges appointed by the governor, they will instead be selected by members of the public serving on the commissions. The public will also have a more meaningful say through the implementation of a retention-election system that incorporates objective and publicly available performance evaluations for the judges."
The article in Forbes Magazine entitled "Courts Gone Wild", by Alexander Tabarrok, seems to support the movement towards a commission-selection process of judges. Mr. Tabarrok points out that "an elected judge faces different incentives than an appointed judge. To an elected judge, a plaintiff is a constituent. And what better form of constituent service than to take money from an out-of-state corporate defendant and give it to an in-state plaintiff?"
The article went on to discuss a research study that shows tort award cases were 42% higher in states where judges were elected rather than appointed; a $363,000 per case increase. Awarding damages to an in-state plaintiff over an out-of-state defendant helped the judge get re-elected. Richard Neely, a West Virginia Supreme Court judge (now retired), spoke plainly about this rationale: "As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."
Our system of government is based on the Legislative Branch making the laws, Executive Branch enforing the laws, and the Judiciary Branch to interpret the laws. In states where judges are elected, special interest groups are more likely to be involved in the "politics of electing judges", especially at the higher court levels (e.g. state supreme court, state court of appeals), and could have a detrimental effect in the economics of that state. Businesses would less likely be willing to do business in a state where they may not have an opportunity to be heard by a neutral and unbiased trier of fact and law. In Washington State, it may be time to rethink our approach.
To read the full article by Mr. Tabarrok, click here: Courts Gone Wild
To read the full article by the WSBA, click here: How We Choose Judges: It’s Time for a Change