SCOTUS recently ruled for the defendants in this case. The issue? From SCOTUSBlog:
Whether a rule of judicial conduct that prohibits
candidates for judicial office from personally solicit-
ing campaign funds violates the First Amendment.
WSJ:
The ruling marks a turning point in the contentious national debate over how state judges should be chosen, a disagreement that goes back to the founding of the nation.
Writing for the court’s majority in a 5-4 opinion, Chief Justice John Roberts said judges aren’t politicians even if they have to win votes to join or stay on the bench. The case produced a rare alignment, with Justice Roberts splitting with his four fellow conservatives and joining the court’s four liberal justices in supporting fundraising restrictions.
The American Constitution Society’s President Caroline Fredrickson had a somewhat insipid statement:
“This ruling recognizes the corrosive effect money has had in judicial elections and helps to restore the image of state courts as fair and impartial. The Court’s decision will help stem the trend of politicization that has been occurring in the state courts.”
At Philadelphia’s Citified, an anonymous writer (sponsored by Adam Bonin), prior to the decision, declares for what he hopes is a more professional approach:
Alternatively, just end the partisan judicial election process altogether. For years, Pennsylvanians for Modern Courts has led the fight to bring merit selection to our state’s judiciary, so that our judges could be considered, nominated, and confirmed, rather than elected. Merit selection promises to bring a more professional, qualified bench, and potentially solves more problems beyond the fundraising issues.
Merit selection would restore some dignity to this process while, admittedly, giving me a lot less to do this time of year. It’s worth pursuing.
The important link is broken, so here’s Pennsylvanians for Modern Courts. Merit selection:
Merit Selection is the judicial selection system that best ensures that qualified individuals will reach the bench without the problematic influence of money on the selection process. Merit selection uses an independent bipartisan citizens nominating commission composed of men and women from across the Commonwealth, non-lawyers and lawyers, from diverse occupational, racial and ethnic backgrounds. Anyone meeting the required criteria may apply to the commission to be considered for a judicial vacancy.
I must admit to being less than enthused, partially on compositional grounds.
First, the first sentence really requires at least a few paragraphs to back up an assertion which is not obviously true, and therefore should not be mixed into the rest of the paragraph under examination, which is devoted to the “how” of Merit Selection. In fact, I suggest the methodology of Merit Selection be first explained, and then exposition concerning its superiority over other methods follows it so that readers can follow the logic for the assertion. The above paragraph is not persuasive.
Second, the last sentence should be stricken. I had to read it several times before i understood they were switching the focus of the paragraph from the makeup of the committee to who would be eligible to be a judge. 2a, which “required criteria,” a phrase I find questionable in itself, apply?
Third, “independent bipartisan” sounds great until you take a moment to think about what you just read. First, “independent” can (and usually will) be taken to mean “not part of any political party,” which is jarring once you realize that “bipartisan” definitely implies that the members of the commission are either members of, or are, at the very least, strongly inclined towards, one political party or another. I search for an alternative meaning of “independent”, but the best I can do is suggest members who are not tied to the power structure of the party, but are merely members in good standing, and I think that is dubious.
Fourth, if they REALLY mean bipartisan, then why bother? They’ve returned to voting for judges using ideological criteria. They can HOPE their committee members are really looking for the best, but the process is highly vulnerable to members with an ideological bent, and I do believe the committee will become packed with ideologues – because those will be the people who will take the time to serve on the committee. (Standard rant: Most politically interested people just do NOT understand that the average Joe & Jane want to work their jobs, take care of the kids, and drink their beer or (for the younger set) play their video games. Politics is an unpleasant occupation if you’re not temperamentally suited for it.) Think of who runs the parties: ideologues. These are the folks who have developed an interest in politics, and definitely have a strong point of view that rarely brooks compromise, and often values ideological commitment over reality. They’re the ones willing to devote the time to run the parties, developing extreme positions, etc; the same will happen with the committee.
As an engineer, I would prefer some objective criteria for rating the candidates. However, as a citizen, I would have to agree with the methodology used to rate the candidates, and in the absence of any such system, and given the fact that I may fall under the jurisdiction of these judges, I may have to fall back to the question of whether voting for judges is better than gubernatorial appointment.
Naturally, I must disclose at this point that I’ve never researched judicial candidates here in Minnesota, where we do vote on them. I doubt the overwhelming majority of voters do.
So what are the options?
We could imitate the Federal approach and have state judges nominated by the governor and then face legislative inquisition. This is, again, a political process prone to corruption, but can be mitigated by making their positions permanent, as Alexander Hamilton points out in Federalist Paper 78:
According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
However, this does not address the possibilities of legislative deadlock, such as we experience at the national level at the present time. While I think this method works well when both parties believe in governance, rather than winning a game, it’s an unstable system – it takes only one party behaving childishly to cause the system to choke up..
There is direct gubernatorial appointment, legislative appointments, elections, etc. Truthfully, none are really appetizing.
(h/t vis a vis the SCOTUS decision: Adam B @ The Daily Kos)
