Monday, November 14, 2005

Should You Vote for Judges?

Today's Houston Chronicle addresses an interesting issue: the election of judges in Texas. Ours is one of only 17 states to persist in the presumably democratic process--33 allow governors to appoint judges.

So what do you think? Voters are reluctant to give up the opportunity to vote on anything, and I understand that. But, if you're like me (and live in Texas), only one of the amendments on last week's ballot was crystal clear. The other five I could decipher, but I did not otherwise feel I was well-enough informed to vote on them. But I did. Sound familiar?

But when it comes to electing politicians and legislators, my views sit so squarely within the views of one party that I can generally vote on that party's candidate and trust that I have made the best decision. But that's the legislature--a place where a politician's personal views, his morality, his beliefs, and experiences are all relevant and helpful. But what part does any of that play for a judge? And more importantly, what role should such considerations play? None. But I can tell you this much: most believe Republican judges are going to be tougher on crime than their Democrat counterparts. I think that is probably true. But (dare I say it) some of them may be too tough (read biased).

For example, when I interned at Houston's First Court of Appeals, I brought a troublesome case to a judge:

Greenhorn: This case is about prior crimes. The DA talked and talked and talked about prior crimes--and this was before the jury had ever determined guilt or innocence. But you see, Judge, we know for a fact that Casimir is guilty. I mean, I've read the trial record, and there's no question that he did it.

JUDGE GOP: But Steve, remember--they're ALL guilty. We're just here to audit the process, to ensure that they get a fair trial....

What the Judge had to say was probably less of a problem than you think. Once you adjust to the fact that they're all guilty--and put that out of your mind, you can honestly evaluate the process. And, as in the Thomas More illustration cited previously, what the judge thinks about the guilt of the accused should have no bearing on his decision.

But requiring him to run for office over and over means he is not insulated from the pressures of politics. It is possible to have good elected judges. But what gets a man elected? Personality? Charisma? Speechmaking? Networking? None of that is in any way related to good judging. Good judging comes from a commitment to truth, objectivity, scholarship, and a reasoned application of the law that is blind to the traits of the parties. There is no way an election campaign is going to allow men with these traits to rise to the top. If Supreme Court judges had to be elected--and regularly reelected--who would we have on the bench right now? It's anyone's guess, but I'm going with Ted Kennedy, Jack Kemp, Robert Byrd, John McCain, Hillary Clinton and Rudolph Guiliani (you can add the other three). Isn't it obvious?--

An election campaign--a popularity contest, really--is not the best way to choose objective scholars able to put aside their personal opinions.

I know Texans like to vote on everything. But in order to get better people onto our benches, we should vote to amend our state Constitution to have judges appointed, not elected.

*P.S. Casimir did get his new trial, no thanks to his attorney's useless appellate brief.


Anonymous Mike said...

A friend of mine first hit the bench as a mid-term appointee when the constitutionality of Texas' judicial elections was under challenge. He remarked that he might have been the only constitutionally construed judge in the state at the time...

Your point is certainly well taken, and is of course the standard challenge to an elected judiciary. I think you overstate the case when you say "There is no way an election campaign is going to allow men with [a commitment to truth, objectivity, scholarship, and a reasoned application of the law that is blind to the traits of the parties] to rise to the top." While the electoral process may be in tension with these goals (and I'm not stipulating here), I hardly think it's as diabolical as it would have to be to frustate so totally the aspirations of potential jurists of suitable character.

It also doesn't logically follow that if elections would harm the US Supreme Court, appointing judges would make Texas courts better. There exist significant differences between the two to allow for the possibility that the state judiciary might be better off if elected while maintaining the appropriateness of appointments at the federal level.

Furthermore, I'm not positive that we improve things if we follow the federal model of executive appointments and senatorial advice and consent. There's little question that there is a lot of money at stake in the judicial selection process in Texas. I just don't know that you get to a place where that money doesn't have its say by trusting the other two branches more than you trust the electorate.

1:08 AM  
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