According to an old adage, no one is above the law. But does that include a sitting judge? Apparently so. The fate of California Superior Court Judge Harvey Silberman is now in the hands of a Southern California jury.
Silberman is accused of trying to convince his former opponent, Deputy District Attorney Serena Murillo, to drop out of a 2008 judicial election for the seat Silberman ultimately won. Silberman is charged with offering -- through intermediaries -- to pay Murrillo's filing fees (totaling less than $1,800) if she agreed to drop out of the race. That move would have allowed Silberman to run unopposed. For this purported conduct, Silberman was charged with an elections code violation. The code prohibits the payment or solicitation of money in an effort to deter another from running for office.
Prosecutors also accused Silberman's consultants -- without Silberman's knowledge -- of later telling Murillo that Silberman would drop out of the race if Murillo would pay more than $80,000 to cover the cost of Silberman's ballot statement. Murillo, instead of accepting either alleged offer, went to the district attorney's public integrity division.
The sordid Silberman affair points to a larger question: should judges be elected? On the federal level, district court judges, court of appeals judges and Supreme Court justices are nominated by the president and confirmed by the U.S. Senate. U.S. bankruptcy judges are appointed to 14-year terms by U.S. court of appeals judges. U.S. magistrate judges are appointed to eight-year terms by district court judges.
Things are often different on the state level, where the voters directly weigh in on the composition of the state judiciary. In my home state of California, for instance, trial judges are elected, or appointed by the governor if there is a vacancy, to six-year terms. Every six years superior court judges stand for retention elections and may be challenged by otherwise qualified California attorneys. Justices of the California Supreme Court and Courts of Appeal are appointed to 12-year terms by the governor and confirmed by the California Commission on Judicial Appointments. Justices stand for retention elections at the end of their 12-year terms.
Does being a good jurist have anything to do with being a good judicial candidate? Would moving to a system where both trial and appellate court judges are appointed and confirmed, rather than elected, create a judicial branch with better-qualified, less political judges?
Since leaving the bench, former U.S. Supreme Court Justice Sandra Day O'Connor has advocated for the abolition of judicial elections. As Justice O'Connor once stated, "Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law's restraints."
Can we count on judges to be truly independent, to make decisions only based only on the law, and not based on politics and/or what is popular, if they must stand before the public every few years in order to keep their jobs?
Judicial elections may be increasingly problematic as the U.S. Supreme Court continues to dismantle campaign finance reforms. Judicial elections are therefore ever more susceptible to the influence of large inflows of money. Will it be any surprise when special interests pour large sums of money into judicial races?
The Silberman matter sheds light on troubling questions concerning the propriety of judicial elections. One thing that does seem clear is that voters will be loath to give up their ability to directly determine the composition of the judicial branch.