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.
Today marks the 222d anniversary of the signing of the U.S. Constitution. And thanks in large part to Senator Robert C. Byrd, celebrations and reflections will occur across the country. In West Virginia alone, there will be events at the West Virginia State Capitol; at the United States Courthouse in Charleston and the Boone County Courthouse in Madison; and at Shepherd University, where you can hear a lecture titled “Restoring the Constitution in the Wake of the ‘War on Terror,’” and West Virginia University, where you can learn about recent U.S. Supreme Court cases interpreting the Constitution.