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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: December 29, 2009 12:19 PM

End Judicial Selection by Election

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A group led by retired Supreme Court Justice Sandra Day O'Connor has begun a campaign to persuade states to choose judges by merit selection rather than by election. I heartily agree. As I said in an earlier post: Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution?! Is it any less unseemly if the check was delivered a week or a month before? This is the by-product of judicial elections. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe, but for many there is an expectation or a perception of a quid pro quo. How else does one explain contributions to both of two rival candidates?

Admittedly the appointment system has its drawbacks and political influence. Some validly criticize it for that reason. But I think it is a fair assumption that the appointing authority will seek qualified persons who will reflect favorably upon them. Screening systems and merit commissions have been adopted which help assure the proper qualifications. I do not mean to suggest that elected judges are necessarily unqualified or corrupt, but rather that merit selection is far superior to selection by election, since the voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge.

As I have said previously, there is a suggestion that elections should be retained because they make judges accountable to the people, but there should be no such accountability. Judges running for re-election are frequently judged on the popularity of their decisions. The most unpopular judge can be the very best. Judges who uphold the rights of persons accused (or convicted) of crimes are frequently maligned, but they are accountable to the Constitution and the rule of law, not some popularity contest. Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.

Note: Justice O'Connor reports that no other country elects its judges.