Tuesday, October 9, 2007

Judges: Is there a better way to pick them?

The November 2008 election for the Michigan Supreme Court, pitting the presumed Republican candidate, incumbent Chief Justice Clifford Taylor, against a yet-to-be-named Democrat, is shaping up to be a spendfest that may rival the 2000 contest, in which three seats were open on the high court.

A couple of weeks ago, Michigan Supreme Court Justice Robert Young told the Republican faithful at a Mackinac Island conference that it might take $20 million to keep the chief in office. In response, Democratic State Party Chair Mark Brewer promised that his party will do whatever it takes to make sure that doesn't happen. See, Michigan Lawyer: The public should care

Whether the 2008 campaign ads will be just as silly and mind-numbing as in years past - "soft on crime," "anti-family," "lacks experience," "Markman and Taylor and Young, oh my!" (chanted to a Wizard-of-Oz cadence by dancing, animated trees) - remains to be seen.

Reform advocates say the way to end all of this nonsense, and to obtain a judiciary less beholden to special interests, is to switch to an appointment process. At the heart of all such plans is the idea that those seeking a seat on the bench would go through a vetting and winnowing process. Survivors then get the appointments.

This is not a new thought. After the 2000 election, then-Chief Justice Elizabeth Weaver championed an appointment plan featuring non-renewable 14-year terms. See, "CJ Weaver Calls For New Method To Pick Justices" Former State Sen. Ken Sikkema floated the Missouri Plan: appointments followed by retention elections. See, "Wanted: Judicial Selection Changes"

As far back as 1994, responding to news stories of judicial smear campaigns, the late Justice James H. Brickley called for adoption of the Missouri Plan. See, "Appointing judges: A solution to 'low road' campaign tactics"

Now comes a recent study from the University of Chicago Law School that tests the notion that appointed judges are "better" than elected judges and concludes that either way may not make much of a difference.

In "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary," by Stephen J. Choi, G. Mitu Gulati and Eric A. Posner, the authors measured judicial independence, productivity and "opinion-quality" to determine whether elected or appointed judges are "better."

The authors say that underlying all the clamor for doing away with judicial elections is "the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions .... The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office."

But the authors note that when "judges use campaign contributions to finance simple-minded television commercials, conflict of interest is layered on public confusion."

Yet, "[i]n a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common."

The paper's abstract concludes that the "empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals)."


Tamara said...

A purely appointment-based system simply leads to advanced cronyism. Personally, given a choice between a political payoff system (for the marginally qualified) and "the ignorant unwashed masses," I would prefer to leave judicial selection in the hands of we the people.

Ed Wesoloski said...

Thanks for your comment, Tamara. Perhaps the single biggest obstacle to changing the current, elective system is that it would require an amendment to the Michigan Constitution. I think most citizens would not give up the right to elect judges, no matter how little they actually know about the candidates. The University of Chicago Law School study touches on your point as well. The authors say many voters rely upon newspaper endorsements. And people who are interested enough to vote are usually astute enough to know whethere a particular newspaper leans toward the same political direction as they do.

Anonymous said...

I understand but disagree with this posting starting out describing the upcoming election for one seat on the Supreme Court and then leading into the election vs appointment debate. It is irrelevant in this race because Taylor was both appointed and then elected to the Supreme Court! Love him or detest him, we got him both ways. Mark Brewer can talk all he wants, it will get him and the party no where. How about a name? A candidate? Jessica Cooper could make for an interesting race. How about fleshing out some of those issues Betty Weaver's been talking about? Is there something to it or not? Was Taylor right or did the press give a free pass? I have a hard time accepting the fact that the average voter relies upon a media endorsement in deciding who to vote for. Most of the time, the press can't accurately report even the most basic things (e.g., the difference between prison or jail, the type of bond that was set, a person cannot be found guilty in a civil trial, etc.). The press is totally incapable of making helpful endorsements.

Anonymous said...

Let us be honest for a moment.

Most people don't vote for judges at all. Voters have no idea they are supposed to work their way to the back of the ballot where judges are hidden.

And of those who do bother, most have not a clue who is who and why they ought to vote for any of them.

Why? Many reasons. Ignorance of the law and the political process for certain. Another problem is the dreaded "incumbency" designation that leads many voters to say, "among unknown choices, at least this one has experience in the job."

Not least of all these reasons is the unfair, dishonest, and ridiculous lack of a party affiliation next to candidates' names.

Parties nominate these high level judges. And judges get nominated for the same reason all politicians do --party loyalty.

Plus most people vote according to the party of the candidate.

Voting in the USA is all about political parties, like it or not.

By depriving voters of the party affiliate for judges, we are depriving them of both the most important criteria for picking a candidate [for most voters], and the primary reason the candidate is on the ballot in the first place.

If we are going to have parties nominate these elected officials, and we are then going to vote for them, why are we pretending they are not political offices?

Honesty and transparency and consistency among how candidates --judges like others-- are treated on the ballots would go a long way to fixing some of these problems.

Party designation. No "incumbency."

Let 'em ride the electoral roller coaster like everyone else.