How Should Judges become Judges?

By YeOldeScribe ~ April 6th, 2011 @ 10:50 pm

We’d like to apologize for how awkwardly-worded the title appears, but we think you’ll understand where we’re going with it. In case you haven’t heard, JoAnne Kloppenburg “defeated” incumbent Justice David Prosser in his re-election bid for a seat on the state supreme court. The “final” tally was 740,090 to 739,886 in favor of the challenger. To put that in perspective, the difference between the two candidates was 204 votes, with Kloppenburg obtaining 50.006% of the vote (meaning the margin between the candidates was one one-thousandth of a percentage point). It’s the closet election we’ve ever witnessed. You’ll notice that we put “defeated” and “final” in “quotes”, because the results aren’t final yet. For one thing, absentee ballots haven’t been counted completely yet (if they’ve even started). There are conflicting reports on this – some say none have been counted, some say most non-military have been, others say they’re all counted. As is usually the case, the truth is probably somewhere in the middle. On top of that, a recount is extremely likely. (A special note here: please don’t say that the recount is “almost assured” or “mostly certain”. These things don’t exist. If something is assured or certain to happen, there’s no almost or mostly. This has been driving our writer batty today, mainly when major media outlets are making that mistake. Come on, guys!) Many votes (especially in Dane County, which went heavily Kloppenburg) were cast via provisional ballot. This means that voters (mostly college students in the case of Dane County) weren’t able to prove residency, but were still allowed to vote. Anyone who used one of these ballots had until today at 4 p.m. to prove their residency, or their vote wouldn’t count.  Given all these things, it’s no surprise that the Wisconsin Election Chief overseeing the results says that the numbers will change before they become official – and in a vote decided by 204 ballots, that’s not really good news for the self-declared winner.

Yesterday’s election begs a bigger question though – why does Wisconsin (or anyone, for that matter) elect judges? At the highest levels of our federal government, judges are appointed by the President and confirmed by the Senate – not elected. We wanted to look at the advantages and disadvantages of each system, and come up with which one we thinks works best.

Appointment

Why it’s good: First and foremost, appointment is good for the separation of powers/checks and balances that are built in to our national Constitution. Without appointment, the President basically doesn’t have a check on the judiciary besides executive orders, if you even count those. Second, appointment is a bit more professional than a general election. Sure, sometimes presidents will make non-sensical nominations, but that’s why the Senate has to confirm any nomination. An appointment is supposed to ensure that the nominee has the highest legal qualifications and that their nomination process will be solely about them.

Why it’s not good: All it takes is a simple majority in the Senate and the president to be of the same party to technically be able to ram any candidate through. Although it normally doesn’t happen (even Republicans cried foul at the Harriet Meyers nomination), it easily could. Appointments take virtually all the power away from the people, too. Although people elect the president, they have no control over who the president nominates (nor would they know when electing the president who they’d nominate).

Election

Why it’s good: Elections of court justices and judges at the local way is essentially saying “Power to the People”. It gives everyday citizens the opportunity to select a judge that mirrors their beliefs and understanding of the law. It also takes power away from the governors, so those who favor a weak executive branch support direct elections of judges/justices.

Why it’s not good: Most citizens turn what should be an nonpartisan election into a political dogfight when it comes to directly electing the judiciary. On top of that, they probably know very little about the candidates or what their experience is, what cases they’ve voted on and how they’ve voted, etc. Also, since the parties themselves can’t really get involved in these elections, it’s pretty much Political Action Committees spending the serious cash to get their candidate elected, which is not good for democracy. And even if all the citizens were perfectly informed about the people running for court positions, only 20% will show up for an April election, on average. Also, it forces the candidates to campaign, which isn’t good. Justices and judges shouldn’t have to try to get your vote the same way politicians do, but that’s usually what happens in an election.

So which is better? To us, it’s pretty clear that appointments are the way to go. They get the closest to ensuring that the candidates who are selected are qualified for the job. They get the closest to cutting partisan politics and special interest groups out of the picture. And most importantly, they do the best job at upholding checks and balances, aka our Constitution.

Regardless of who you supported in the WI State Supreme Court battle, we still think you shouldn’t have had to pick in what turned out to be a mud-slinging and PAC-funded war. The appointment system does such a better job across the board.

Although we shudder to think who Walker would have appointed. Maybe elections aren’t so bad after all.

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2 Responses to How Should Judges become Judges?

  1. Chris McConaughay

    A very interesting topic. I think, in a way, it covers the Federal Senators issue that irks me so often. Originally, a state’s senatorial delegation was elected by a state’s congress, and not by the people. I think it was the Progressive movement that changed that. In the opinion of YeOldeScribe, why shouldn’t judges be elected when viewed through this spectrum? Or am I off base with the comparison?

  2. Nathan Wright

    Most of the reasons you give explaining why elections are “not good” are really issues with our election system in general. PAC’s, political parties, low voter turnout, uninformed voters, are all problems endemic to the current process in all elections.
    ” Also, it forces the candidates to campaign, which isn’t good. Justices and judges shouldn’t have to try to get your vote the same way politicians do, but that’s usually what happens in an election.” – This, however, is a problem unique to the current judicial process. We demand that our judges be “impartial”, while secretly voting for the one that we think will rule the way we want.
    This results in judicial hopefuls engaging in an elaborate kabuki dance, where they refuse to publically express any opinion that might brand them as having “predetermined” an issue, while sending subliminal messages to the electorate to influence their vote. Of course, this happens whether they are elected or appointed, but it becomes more absurd in an election, particularly when third party PAC’s are sending out blatantly partison advertisements touting one candidate as the champion of their cause. I saw ample admail from 2nd amendment and pro-life groups pushing for Prosser, and multiple Union admails pushing Kloppenberg. (for example)

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