Judge Selection From Moses to Missouri

Churchill famously said that democracy was the worst form of government except for all the others.  The recent Supreme Court ruling about the election of judges and the concomittant campaign contributions tainting judicial opinion brings that to mind.  That specific case involved large donations to a State Supreme Court judge who later ruled in favor of the company owned by his largest donor.  There shouldn’t be bias in the rulings of any judge and certainly we never want the perception that judges can be “bought”.  That is anathema to our concept of fair and impartial justice.  The fact that the Supreme Court ruled that judges can’t be prejudiced in their rulings or give the impression of bias is not novel or alarming.  What is very troubling is the secondary proposition behind the ruling that the election of judges is somehow inherently tainted and not the best way to have judges selected in our society.  

Immediately there were op-ed opinions and articles about selecting judges with appointment systems rather than elections at the state level.  That idea has been floated many times over the last 50 years in various states.  A few have opted to go with a system of appointment.  Missouri is the most well known of these methods of appointment.  The particulars vary from state to state but essentially there will be a commission or some such which will make recommendations to the Governor who in turn will appoint judges.  In some states those judges then stand for election a few years later as an incumbent with all the build in advantages that incumbency brings with it.   In some the election is one sided in thThat the electorate can only vote a judge out of office but can not vote someone into a judgeships because the appointment process is used to replace the judge voted out of office.   California utilizes such a system.   The rationale behind these appointment methods is that is will keep money and p0litics out of the judicial selection process.   Everyone wants the judges to be above politics and rule on the law and not identity of race, gender, station or political affiliation.   

Having an independent and trustworthy judiciary is an old desire.  It goes back at least as far as biblical times.   You may recall that Moses’ moniker was “The Lawgiver”.   It is always a touchy subject about who you will submitting your dispute to in any society.  For example if you read about Iraq or Afghanistan today you will note that one of the hottest buttons in both places is who will control the courts and how those judges will be selected.   Moses established the entire judicial system for the Jews and set aside specific individuals and a tribe to be the judges.  Samson was a judge in addition to being a warrior.   Our Federal system under the Constitution has always provided for the selection of judges by the President with confirmation by the Senate.  The Founding Fathers eschewed the election process for judges.   Of course at that time they never envisioned the party system that did emerge within a couple of decades.  Even in the earliest stages of our history the selection of judges and their rulings became contentious and highly political.  From the time of Marbury v. Madison when the Supreme Court first took it upon itself to say that it could find a law passed by Congress unconstitutional and thus unenforceable there has been great p0litical dispute and conflict over judicial selections.   You will note that every President has a large number of unconfirmed judicial appointments at the end of his term and this is especially true if the opposition party controls the Senate.  

Politics are central to the selection of judges whether by election or the appointment method.  It has ever been thus and will remain so.  Do you believe the current US District Court judges around the country were selected without any influence of politics?  Surely you don’t.  Those lawyers who are recommended have been involved in the local political scene.  Normally they have been very active.   That is how that got the recommendation from their local Senators or Congressmen.   Those politicians didn’t just poll the local bar and pick a name from among the most competent lawyers in their State.   Believe me they knew their political affiliation and how active they had been for the party.   It is a highly political process.  Every US District judge has been a politician to get his appointment even though he may not have every stood for any elective post.    We have witnessed on many an occasion where judges got an appointment to the federal bench as a political trade off.  That is true with Sotomayor.  She got her original appointment by Bush I in exchange for the Democrats supported and confirming another Republican appointee at the same time.

As ugly as it is and messy as it is I would hope we never change the elective process for judges at the state leve.   In Missouri now there is some growing opposition to the appointment method because,,,,surprise, surprise,,,,,politics it seems are involved in the selection process by the commission and the governor.   Trying to take politics out of the judicial selection process is like trying to remove the air from the atmosphere.  It will be there regardless of method.  Since politics are an integral part of the judicial selection process I much prefer that it be out in the open.  Yes, that means that sometimes we get judges who are better politicians than they are judges.  But at least we the people had a say in the process and we do get to vote again at the next election.  I don’t like the politics being conducted in the back rooms of commisions or boards or governor’s office.  Yes, that means money will be involved, that people will  often vote for judges that they know nothing about.  But how many people could pass a test on their Senator or Representative if push came to shove.  As awful and ugly as the elective process is it is more transparent and let’s the people have a say in the process.  We should trust the people rather than political elites and wonks.  As bad as it is the elective process is still better than all the other methods for judicial selections.

Please note that the 10 year Treasury Notes are now up to 3.90%.  That is over a 1.5% increase in less than two months.  The world is losing confidence in King Dollar.  Some suspect his crown is slipping due to deficits and the looming inflation.

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Filed under Culture, government, law, Politics

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