Judicial selection

Much discussion was had last year about the selection of judges in Virginia, particularly surrounding the selection in Norfolk. This year, the conversation has been a little under the radar but continues nonetheless. Judges are selected by the General Assembly and as this article points out, the process is far from being non-political.

Sandra Day O'ConnorSunday’s Parade Magazine featured an article by retired Supreme Court justice Sandra Day O’Connor. She expresses concern about the pressure being put on our judiciary:

The judiciary currently is experiencing unprecedented pressure from interest groups to make decisions that are based on politics…the vast majority of law is state law. Ninety-five percent of litigation takes place in state courts.

I was struck by that figure: 95%! With all of the emphasis on the US Supreme Court and its nominees, most of the litigation is going on at the state level – right under our noses – and I doubt if most people could name more than one or two local judges, much less than the members of the VA Supreme Court. Further proof that all politics is local. O’Connor continues:

Political pressure is a big problem in a number of our state courts. More than 89% of state judges go through some form of election process. Many of these elections recently have become full-fledged political battles, fueled by growing sums of money spent by candidates and special-interest groups to attack, defend and counterattack.

I have often wondered how the election of judges worked. As a matter of fact, I asked an elected judge from New Mexico who I met last year at a Richardson event this very question. He didn’t have a problem with it. Perhaps what O’Connor describes has not made it to New Mexico yet.

O’Connor is no fan of elected judges, and after reading the article, neither am I. I’m no fan of the current system in place in Virginia, either. O’Connor offers a suggestion: select based on merit. What a radical concept!

Under this plan, currently used in states such as Colorado and Nebraska, an independent commission of knowledgeable citizens recommends candidates to the governor, who appoints one of them as judge. After several years on the bench, the judge’s name is submitted to the electorate, who vote on whether he should keep his position. This method decreases the importance of money and politics in the process while still allowing voter input on retaining each judge.

This sounds like a very workable solution. After all, at the end of the day, we need a fair and impartial judiciary. This is something our legislature should consider.

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6 thoughts on “Judicial selection

  1. select based on merit

    Might as well ask that they select policies and laws based on merit, too . . .

    I’ve long thought elected judges were a bad idea. Rather term appointments, long enough to go between at least a couple of administrations.

  2. I saw the article by Justice O’Connor, too. I found it very interesting that arguably one of the more political justices of the last half-century found fault with a politicized judiciary. Certainly, the notion that “The judiciary currently is experiencing unprecedented pressure from interest groups to make decisions that are based on politics…the vast majority of law is state law. Ninety-five percent of litigation takes place in state courts,” is beyond suspect.

    Unprecedented? A good case can be made that the judiciary has ALWAYS been “pressure[] … to make decisions that are based on politics.” Marbury? Dred Scott? Plessy? Lochner? The switch in time that saved the Nine? Brown? Roe v. Wade? How seriously can an argument based upon the premise that “pressure from interest groups to make decisions that are based on politics” is “unprecedented” be taken?

    The system is imperfect, to be sure, but what system isn’t? Certainly, the situation in Virginia is no worse that many states — and, I would assert, a whole lot better than in many (my home state of Pennsylvania, for one) — but the alternative she proposes is one which merely exchanges one imperfect process for one which is a whole lot more imperfect, and certainly does NOT remove the possibility of abuse, aside from the fact that it is much less democratic. Have you ever tried to remove a bad judge in a retention election? My home county in Pennsylvania did, the Honorable Peter Krehel, who made an international name for himself in the 70s by advocating return of the stocks and the whipping post in the town square. We were stuck with him for ten years (he did so early in his term), and he nearly survived a retention election in 1985.

    The problem of which you complain, VJP, is one which inevitably arises from a number of causes. The politicization of the judiciary is brought about by, inter alia: (1) an ever-increasing size and scope of government; (2) lazy legislators who write vague statutes necessitating judicial construction far beyond that which SHOULD be necessary; and (3) interest groups which seek societal change through the least democratic means, the courts.

    I fail to see how making the judicial selection process LESS democratic is an improvement. It merely shifts the interest-group politics to a different, and far less public, venue.

  3. I agree, James. Just looking at the decision upholding Social Security. It was written under Roosevelt’s threat to expand the S.C. and stack the bench. The argument they had to come up with to appease Roosevelt is so inane a Logic 101 student could pick it apart.

  4. James Young said: “”Ninety-five percent of litigation takes place in state courts,” is beyond suspect.”

    In 2005:
    The Federal courts had 253,273 civil cases filed.
    The State courts had 16.7 MILLION.

    The Federal courts had 92,226 criminal cases.
    The State courts had 20.8 MILLION.

    Plus, the state courts hear Domestic Relations and local Traffic and other cases the Feds never would.

    There’s your 95%


  5. I don’t dispute those figures at all, “Anonymouse 2.” Calling “pressure from interest groups” “unprecedented” certainly is “suspect.” Probably beyond “suspect,” and just silly. Kindly pardon my failure to adequately edit the quotation.

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