I note that How Appealing, a widely read blog in elite legal circles, is carrying news of both former U.S. Supreme Court Justice Sandra Day O’Connor’s visit to West Virginia and her advice to West Virginia to stop electing judges. Thanks to Hugh Caperton, Don Blankenship and Brent Benjamin and their United States Supreme Court case,West Virginia’s Independent Commission on Judicial Reform has an audience far beyond West Virginia’s borders.
Is Justice O’Connor right? I think so, as long as we develop a system to replace popular election that is likely to produce the legal profession’s best and brightest and most fair and balanced as state judges. I really don’t want my judge working the political pinto bean dinner circuit, nor feeling pressure to impose the popular criminal sentence.
Should the Governor be able to appoint judges, possibly with the advice and consent of the Senate? If that’s the only process, I don’t think so. Otherwise, we may do little more than place political partisans in positions of judicial power.
Should lawyers play a role in the selection of judges? Yes, but …. The people most likely to know whether an individual demonstrates the characteristics necessary to be a good judge are lawyers who interact with him or her regularly. By the same token, lawyers often do not appreciate larger policy issues nor do they always act honorably.
What would I do?
- I would solicit applications from all lawyers interested in being judges. They would submit character references and writing samples.
- I would have a committee made up primarily of non-lawyers review the applicants’ qualifications and designate anywhere from 20% to 25% as the most highly qualified.
- I then would hold a lottery to select the judge, who would serve for six years. Once he or she served six years, he or she would not be eligible to serve as a judge again.
- Judicial seats would be filled on a rotating basis so more veteran judges could mentor newer judges.
It’s one thing to say that there’s got to be a better system of selecting judges than popular election. It’s another thing to come up with a truly better system given the vicissitudes of politics, money and self-interest.
So what about Supreme Court justices?
HK, you’ll find my answer in the next post. By the way, I’m not holding my breath waiting for the Independent Commission to adopt my recommendations.
Dennis, I am not following this. I’ve told you before, eating too many poppy seed muffins can backfire.
I think West Virginia judges should only be chosen via Vent Line. There….there in Charleston you get the intellectual scope, depth, originality, creativity and, quite frankly, political sophistication one hasn’t seen since the late 1920s in American journalsim.
Vent Line is the only way to go. These good people seem to have the pulse of W.Va. Is there a Vent Line committee on Vision Shared?
Is Vent Line justice like vigilante justice? I predict more heads would roll after a few days of Vent Line justice than rolled during the entirety of the French Revolution. Let the Vent Liners eat poppy seed muffins, I say.
I like this topic. Dennis, do you know the stats on other states as to how many elect their judges? And if they are not elected, what other options have you uncovered? (in addition to your suggestions)
Pam, you can find summaries of what other states do here. Some mimic the federal system and have governors appoint judges, often based on recommendations from a nominating group. Such judges sometimes run in retention elections (an up or down vote by the public) after serving a certain amount of time. This is what former Justice O’Connor wants. Some elect judges in partisan elections, while others elect judges in non-partisan elections. Needless to say, no one uses the lottery approach favored by the first real democrats (small “d”) – the ancient Athenians.
Forget the other states. Do what works for W.Va. Try something original and out of the box.
I personally don’t mind the election process. I think some lawyers get frustrated because the public isn’t generally as informed as the attorneys would prefer. However, you could say that about any election. Lawyers are educated – and generally, – well read people. The public isn’t.
So the former supreme court justice – and her sycophant (Dennis Taylor) – want to take the decision making process away from the public. Period. This is what this is all about.
W.Va had better watch its back. The levelling winds of DCT Advisors are about to blow right through that valley.