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Is it time to leave filling judicial openings to the experts?

Michigan elects its judges, and the state is hardly alone in this. Thirty-nine states use some type of election – partisan, nonpartisan or uncontested retention elections – to fill their trial court and appellate benches, and 22, including Michigan, use competitive elections for their respective supreme courts. Although this reality likely goes unnoticed by a vast majority of the electorate, lawyers, academics, and political observers have long questioned an elected judiciary, not least because of the incentives for judges to “play politics” from the bench in order to curry favor with donors and voters.

Some fear that judicial campaigning impeaches the integrity of the legal system as a whole, especially when the mud starts flying. Michigan’s 2008 Supreme Court race, for example, featured supporters of former Chief Justice Clifford Taylor* accusing his challenger, the now-disgraced Diane Hathaway, of sympathizing with terrorists while letting sexual predators off the hook. (The Democratic party fought back with their infamous “sleeping justice” ad.) That contest remains one of the dirtiest judicial campaigns in recent history.

A further issue, rarely discussed openly, is that most voters lack the interest, information and sophistication to intelligently select those most suited for the bench. It is unsettling to think that state courts, which collectively resolve 95 percent of the country’s legal issues, should be subject to a popularity contest.

It stands to reason that Justice-elect Richard Bernstein landed a spot on the bench due in no small part to name recognition. The Sam Bernstein Law Firm – of which Richard is a member – funds the studio used during Fox Sports Detroit’s broadcast of Tigers and Red Wings games, and he appeared frequently in the firm’s television ads up until the advent of the election season. None of this is to say that Bernstein won’t prove himself capable for the job; he has, after all, a very accomplished academic and professional record. However, it strains credulity to believe that his election was motivated primarily by those factors.

Except for a handful of high-profile cases, typically involving sex and murder (or potential plot fodder for upcoming episodes of Law & Order: SVU), the bulk of state court proceedings go unreported, thus creating an information deficit which is difficult for most voters to overcome. And though the electorate is likely to retain partisan dispositions concerning how judges ought to carry out their function in the abstract, it’s far from clear that ideologically driven judging is normatively desirable, even in a democracy. As Judge Richard Posner of the Seventh Circuit Court of Appeals points out in his 2005 article, “Judicial Behavior and Performance,” judges beholden to political opinion, particularly where that opinion is uniform, lack the independence required to safeguard minority rights (broadly understood).

The difficulties do not end there. Returning to Posner’s article, he is right to highlight that “most people are temperamentally unsuited for electoral politics and in any event not good at it, though they may have just the suite of abilities required in an excellent judge.” This is where the virtue of judicial appointments comes to light, particularly when appointment authority is vested in multiple actors which can vet a judicial candidate’s qualifications. One possible scheme, modeled on the process set forth by Article II of the U.S. Constitution, is for the governor to appoint judges with the ratification of the state legislature. While this and other appointment methods cannot wholly obviate the role of politics in selecting judges, they have the potential to fill vacancies in a more informed and meritorious manner than the electoral system offers.

An elected judiciary has its defenders. For instance, Posner’s son, Eric (a professor at the University of Chicago), along with two colleagues, published an empirical study in The Journal of Law, Economics, & Organization, finding that elected judges are more productive than their appointed counterparts and that they do not exhibit any less independence. The authors did, however, find that appointed judges had a slight edge with respect to the quality of their written opinions as measured by the number of times they are cited by other judges. Not surprisingly, other scholars remain unpersuaded by these measures.

Moving away from elections does raise some worries over democratic legitimacy, but they are easily addressed. Shifting even part of the judicial selection to one of the available appointment schemas used in other states does not mean excluding voters altogether. Governors who, by the electorate’s lights, appoint bad judges, and the state legislators which endorse them, can be punished at the polls, especially if the public perceives excessive partisanship at work.

Concerns that a dominant political party could create long-lasting headaches for its rivals by packing the benches with judges who share their ideological orientation can be met with the retention of term limits. While the need for consistency and stability on the bench may dictate that these terms run longer than the terms established for other lawmakers, an appointment-based system does not necessarily entail a life-tenured system. Poor judges should lose their posts, and a sensible, but rigorous, method for removing thoroughly inadequate judges from the bench ought to be retained as well.

No selection method is infallible, of course, but there is room for intelligent reform. Even if Michigan currently lacks the political will for overhauling its judicial selection process, it may only take a serious scandal or two to stir the waters of reform. It is no doubt better to begin thinking through these difficult matters now while all of the informed heads can remain relatively cool.

* An earlier version of this column failed to note that claims made in ads in the 2008 Supreme Court race came from supporters of Judge Clifford Taylor, not the justice himself. The sentence has been corrected.

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