Litigation

Shattering ?Myths About Electing Judges?

By Peter Hardin

With debate warming up over the way judges are selected, one expert says it’s time to “puncture” three myths about the election of judges to the bench.

Meryl Chertoff, director of The Aspen Institute’s Justice and Society Program, defines and attacks the “myths” in a Huffington Post commentary. Here is a summary:

1. Judicial elections give the people control over who will be their judges. Not so, Chertoff says, because governors frequently pick someone to fill a midterm vacancy; judicial candidates often appear on a ballot with the advantage of incumbency; and it is not unusual in partisan election states for party bosses to designate candidates for the bench.
2. Judicial elections are more democratic than an appointive or merit system.  “If democratic selection means that judges are picked by those who put the most money into a judicial election,” she writes, “then what we really need is a dose of republicanism.”
3. Merit selection is controlled by elitist lawyers. It doesn’t have to be that way, she explains, pointing to a system in Arizona where nominee screening commissions are required to have a majority of non-lawyers.

Judicial elections last week in Iowa and Kansas showed that special interest groups can mobilize to influence the outcome of merit selection (retention) races, just as they have done in partisan contests, Chertoff continues. But merit selection nonetheless will help bolster public confidence in fair and impartial courts, she concludes:

“But what merit selection does mean is that defeat of a controversial incumbent judge won’t result in election of a less-qualified challenger, that judicial races won’t involve blatant appeals to partisanship, and that these races generally will attract less money. That alone will help bolster the integrity and popular legitimacy of state courts.”

In a separate Huffington Post piece, Andrea Lyon, a Depaul University law professor, recaps last week’s outcomes in retention races in Iowa and Illinois and concludes with a defense of merit selection:

“We have three branches of government for a reason, and the judiciary should be selected on the basis of merit, not electability, and not because a group — whoever they may support — is willing to spend money to put a puppet with robes on the bench.“

Full post as published by The Gavel on November 11, 2010 (boomark / email).