Electing judges -- the replies

As I expected, my thoughts last week on the desirability of electing state judges in Virginia brought a good deal of response. As I also expected, most of the response was, to say the least, skeptical. It was, to say the most, apoplectic. This week we’ll look at the objections one by one.

Some took immediate and general exception to my proposal: Electing judges?? What a terrible idea!!

No, it is not self-evidently a terrible idea. As I pointed out last week, almost 40 of the 50 states require judges, in one form or another, to go directly before the people and ask for their trust, their confidence and their votes. To simply dismiss the idea as outlandish and unthinkable requires the objector not only to demonstrate that these 40 states receive justice measurably worse than that meted out in Virginia, but also to demonstrate that the reason that their judges are worse than our judges is that their judges are elected.

Judges interpret the law. Judges’ personal opinions should not enter into their considerations. These views are, or ought to be, irrelevant to their consideration of questions of law before them.

This objection is true, but it is not terribly helpful. It does not answer the more immediate and troubling question: What are we, the people, supposed to do when the judges are NOT responsive to the law?

Without the threat of popular repudiation, the options for dealing with a judge who interprets the law in an invalid, irresponsible or simply wrong-headed way are severely limited. The judge can be impeached by the General Assembly. Put differently, the members of the General Assembly may, in theory, admit on the public record that they made a terrible decision in placing someone on the bench, and they may, also in theory, remove that person from the bench.

This is not to impugn the integrity of the legislators; it is simply to describe the bind they would find themselves in, as a way of explaining the built-in bias against judicial impeachment for any crime less serious than robbing an orphanage while wearing the judicial robes.

Other than impeachment, judges can be checked by the passage of a state constitutional amendment. Amendments to the Virginia Constitution must be passed by the legislature first, and only then go to the people of Virginia for a vote. This is, at best, a cumbersome process (and rightly so) and therefore inadequate protection from bad judicial decisions. Election, or retention, on the other hand, would be more likely to serve as an effective, and constant, deterrent.

Some objections were more specific. Do you really want personal injury plaintiffs' attorneys contributing to judges who will later hear their cases?

At the moment, there is nothing in Virginia law to prevent personal injury attorneys from contributing to legislators who will pick the judges who will later hear the attorneys’ cases. If trolling for political contributions is unseemly for judges, why is it all right for the selectors of judges to do so?

Moreover, it would be the task of the media or of non-governmental watchdog organizations to point out that Candidate X for Judge has accepted large (or even not-so-large) contributions from personal injury attorneys, or from any kind of attorneys. Indeed, it is likely that minutes after Virginia decided to elect judges, both the candidates for judgeships, and the various lawyers’ organizations, would announce that the latter would not offer, and the former would not accept, any such contributions.

And if they did, it would be up to the people to decide whether or not they thought was disqualifying for the position of judge.

And this comment brings us to what seems to be the underlying objection to the idea of electing judges: the people are not qualified to select judges on their own. Some other branch of government needs to do it on their behalf.

There may have been a time when this statement was true. It was also a time when judicial decisions were less likely to disrupt people’s lives and livelihoods than they are now. It was also likely to be a time when making law was left to the [elected] legislature, and not undertaken by the [unelected] judiciary.

But the level of judicial activism is not all that has changed in recent decades. Access to information on the part of ordinary voters has exploded. In earlier columns I have commented in the “new media” and the Internet as sources of first-hand information. If judges were elected in Virginia, any citizen with access to a public library could check on the record of a judicial candidate. Such background investigations into potential judges’ public statements, records of public service, acceptance of political contributions, etc. need no longer be regarded as something only legislators can do.

But the people won’t do that sort of investigating; they’ll be swayed by slick advertising and expert “spin.”

There is no logical reason to think that this purported laziness on the part of citizens will be limited to judicial elections. Such an objection is a vote of no confidence in democracy itself. The people are qualified to pick a president; they are qualified to pick judges also.