In practice, this theory is not supported by the fact. When it comes to elected judges, voters are idiots. The latest example comes from Los Angeles.
[A] highly regarded sitting judge [was] ousted from the bench Tuesday by a bagel store owner who'd barely practiced law in the last decade . . . . Judge Dzintra Janavs, a 20-year veteran of the bench, lost by almost 8 percentage points to Lynn Diane Olson, a Hermosa Beach resident and business owner who only late last year reactivated her state bar membership. . . . Olson, who was rated "not qualified" by the Los Angeles County Bar Assn., outspent Janavs by more than 2 to 1, giving about $100,000 of her own money compared with about $42,000 in contributions reported by May 20 by the judge. . . . Janavs was one of only two judicial candidates of 28 in the county rated "exceptionally well qualified" by the Los Angeles County Bar Assn. . . . Olson and her husband, Michael Keegan, a Hermosa Beach councilman, said they did not target Janavs because of her name, but rather because she was Republican.
Unlike most cases where a sitting judge is ousted at the ballot, Janavs had made no controversial opinions which were in the public eye. The partisan affiliations of the candidates did not appear on the non-partisan ballot. An e-mail campaign emphasized Olson's endorsement by the county's democratic party.
Most of California's 1,500 Superior Court judges never face election. Once appointed, they come up for retention election after six years but only appear on the ballot if someone challenges them. However, if a judge vacates a seat close to an election, the successor is not appointed but is chosen by the voters.
To be clear, Olson's only fault here is being a bit ambitious for her qualification, which is normally something we leave to the voters, and the Democratic party can hardly be faulted for endorsing a registered Democrat over a registered Republican in an election. But, the voters of Los Angeles were uninformed idiots, and unfortunately, this is the norm in judicial elections, not the exception.
Assuming to much of voters is a recipe for bad decision making. Appointing judges is a better solution, and the system employed in Colorado is far superior to that of California.
In Colorado, judges are nominated by blue ribbon panels appointed on a bipartisan basis, appointed by the Governor (or by Mayors outside the state part of the judicial system), face up or down retention elections without opponents after long terms in office, and face voters who receive detailed evaluations of the judicial candidates from a blue ribbon performance evaluation committee in advance of the election. As a result, Colorado has judges chosen largely on their legal merit. Political connections and philosophy do matter, but truly unqualified candidates are weeded out and not made available as a choice to the person making the appointment. And, because Colorado judges don't have to mount expensive campaigns, they don't owe any favors to campaign contributors.
You don't have to rely on my word alone. Retired U.S. Supreme Court Justice Sandra Day O'Connor echos the sentiment (questions are from USA Today, answers are from O'Connor):
Q: Do you think money has polluted the process in some states in which judges are elected?
A: In some states, very much. I came from Arizona, which provided for the election of all judges. I did not think that was a good system because when judges ran they had to spend money for advertising and campaigning to win the nomination and then the election. Where did that money come from? It came from lawyers. And what lawyers? The lawyers most likely to appear before them. I think that's a lousy system.
Q: Did you do anything to change that system?
A: I served in the Legislature, and I tried to get the Legislature to amend Arizona's constitution to put before the people a system of merit selection of judges. I could not get that out of the House of Representatives. I could get it out of the Senate. So I helped organize an initiative drive to get voters' signatures to put it on the ballot. We got enough signatures, we put it on the ballot, and I had decided that I was going to try to be a judge, and I ran for office as a trial judge in the same election the same year that that ballot went before the people. And it passed by a very narrow margin.
If you don't want judges to be legislators, don't elect them.
It's Judge Janavs fault for not changing her name to a safe, white-souding "American" name.
Dzintra Janavs vs. Lynn Diane Olson.
She should have changed it to Diana Johannson. Southern Californians apparently realllly don't like the idea of immigrants taking jobs away from Americans.
The decisions judges make often have some political consequences, and outcomes (assuming, perhaps naively, that their intentions are not political). So, let's be frank and honest about it - an elected judge who is aware of the norms can tell you what the law is, not what the law ought to be. Judicial opinions have outcomes. All people who generate an outcome should be held accountable. Judges should be accountable to the people through the electoral process for their fidelity to the rule of law.
Moreover, the criticisms' you raised can be fixed by simple institutional transparency (e.g. donations etc).
Like the Swiss (did with citizen initated referenda), over time, voters will become more educated - its a cultural change.
A simple compromise would be to pool about 10 candidates from various ideologies, degrees and beliefs (from your Scalia to Sandra Day O'Connor) and then put them up to election.
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