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.
If voters aren't qualified to select judges then they're not qualified to select people who select judges.
You think law springs form the breasts of lawyers, and needn't reflect voters' wishes? Voters may be uninformed or misinformed but what we want, however counter to precedent, or ill-advised, is all that really matters. The legal community's not some star-chamber presiding over the rest of us; its the means we use to collectively manage our cooperative efforts and facilitate peaceful coexistence.
To be blunt, its not about you, its about us. We have every right to define what is law and to select those who will be our judges and legislators according to what we want. They represent us and our interests, not "the law's." The law, too, is supposed to represent our interests. The problem with government, including the judiciary, is that our representatives feel no need to represent us; and that's why we must have the right of selection. Its the only means we have to encourage them to actually represent us, not themselves or their ideologies—this post itself is proof of that.
The constitution is the means to our ends, not the end to our means. You, like many of your brethren, don't care to understand that.
And you're right about voters being uninformed. I've received ballots with over seventy judicial nominees. I don't have the few odd months to spend evaluating them.
But you've presented no arguments for appointments being superior, there are none. Money can influence appointing officials just as easily as elections. Appointing officials can be just as ignorant as any voter, more so, as they won't even try to evaluate, leaving it to staff, and may willfully ignore facts for partisan, ideological, or personal advantage.
I don't say judges are insensitive to the public, far from it, I think decisions are routinely influenced by public sentiment, judges are, after all, community members and share similar beliefs and values. And they're trained to revere the law above justice; while that serves the interests of the government and often the public, it doesn't always serve the public.
Judges should be independent and objective, but they're human and never will be. Making them even more unaccountable is a mistake. Making them unaccountable to the faceless mob they police is a big mistake. Making them accountable to powerful individuals they may need to police is an even bigger one.
There's plenty of room for improvement but change isn't necessarily improvement.
IMO the individual who has faith in the US INjustice system isn't very bright, and certainly isn't paying attention.
Identity theft is a federal crime Senator Johnson, and State Judges can not negate federal law. Yet this States Court did negate federal law because the Court knows they can get away with it.
Google Senator Johnson southdakotagov to view Senator Johnson's letter on id theft and Judges.
Rather than allegiance to one's national party's interests (as can be seen in the current crop of Senate votes), Senate allegiances would be more in line with their individual state's citizens interests.
Sorry judge. No one is above accountabiity. Perhaps you would like to restate this....
No, actually their accountability is supposed to be to the Constitution and to justice and not to public opinion. That jurists have substituted "the rule of law" for justice is one reason why the public and not members of the bar must select jurists.
Only congress legislates. The precedents and rules conveniently labeled "the rule of law" are not, in fact "the law." When jurists' slavish adherence to them thwarts justice it is not because of the law, its because jurists refuse to judge. They don't want to be out there without something to hide behind.
When legal professionals start remembering that the whole point is justice, not law enforcement, then maybe they'll be more qualified to select judges than we are. But as long as we are the ones who must abide by judicial decisions, and they can't see the forest for the trees, we can't afford to leave the selection of jurists to legal professionals.
What needs to change is not the act of electing judges, but the election system that allows special interests to purchase the judge that is most suitable to minority religious and corporate interests.
"and so too should the judge be such a reflection" - disagree - Judges exist to impartially apply the laws passed (reflecive of the will of the people) based on precedent and legislative intent.
By your logic, as the political winds of change blow through government, judges should rule accordingly. How can society function with the expectation that the interpretation of the law will change with the election cycle?
"What needs to change is not the act of electing judges, but the election system that allows special interests to purchase the judge that is most suitable to minority religious and corporate interests."
So your preference is for a system that allows that purchasing by secular and union/government interests? That's fair?
The lifetime appointments of the SC Judges should cease. We are not getting better justice because of lifetime appointments. What we have ended up with is a smaller representation of Congress with every issue getting decided on party lines.
Nor should they. It is not the job of a judge to reflect the "will of the people". If that were the case, Gitmo prisoners would still be being tortured and interracial marriage would still be banned. It is the job of a judge to apply the law to the case at hand (mutatis mutandis, obviously), not to enforce the popular will or even (as Scalia once argued) to protect the people; just to apply the law.
Quite apart from which, the doctrine of stare decisis means that the decision rendered by a court is often dictated by precedent. That was the basis of the Ricci case that caused Justice Sotomayor such problems.
Now, if you'd like to discuss whether lifetime appointments are a good thing, that's a different issue and we could have a good discussion there.
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