Friday, October 15, 2010

A Question on Judicial Elections

Here's an interesting nugget for you. The Iowa Supreme Court is appointed, but Iowans vote every two years on whether or not they should remain in their seats. In the wake of its groundbreaking decision that the ban on same-sex marriage in that state violated its Constitution, several judges are in danger of losing that vote, which has basically never happened before.

That's interesting to me because I grew up in a state (Virginia) where judges are appointed (and never voted on) and currently live in a state where all judges are voted on (and never appointed). The process of electing/voting on judges really strikes me as bizarre, for reasons apparent in the Iowa vote - difficult, unpopular decisions to uphold the Constitution are often disadvantaged in favor of politically expedient decisions that may not follow the Constitution as faithfully. But appointments have their drawbacks too - it's remarkably difficult to get a runaway judge off the bench.

I mention this because there's a difficult appellate court election here in NC this year. Incumbent judge Ann Marie Calabria has done nothing particularly wrong - she's competent, reasonable, and not corrupt - but she's also a strident conservative and a judicial passivist. She is running against Jane Gray, who would make an good judge as well but whose judicial philosophy seems more in line with mine. In a sense, it's the mirror image of the choice facing Iowa voters.

So I have a question for you, dear readers. When is it appropriate for voters to fire an incumbent judge? When they make a decision you don't agree with? When they have a judicial philosophy you don't agree with? Or only in the case of misconduct or corruption? Or is there another standard?

Have at it.


Pierce said...

The problem with doing what's politically expedient is that that can change over time. The law of 2000 shouldn't be applied differently from the law of 2010 unless the legislature has actually changed it.

Believe me, I have a lot of problems with judicial appointments but they pale in comparison to making all three branches of government subject to the partisan pendulum.

lsmsrbls said...

I hate that we elect judges here in Alabama. Judicial philosophy is irrelevant. The Constitution is irrelevant. And we wind up with judges like Roy Moore.

(Which isn't to say you can't get bad judges appointed -- but then at least the goal isn't to make as many waves as possible in order to get media attention so that voters will remember you.)

Mike said...

Mere competence or absence of corruption is not an argument for retention to me. A hardcore religious conservative President, for example, might be a good executive free of misconduct (far-fetched though that scenario may be), but I'd still likely vote for another candidate who more closely shared my worldview. I don't see any reason that judges should be any different.

I'm with Pierce though: I prefer judicial appointments (if not necessarily lifetime appointments) just because they allow some branch of government to operate (relatively) independently of the whims of the populace.

Lance said...

Appointments replaces the whim of the populace with the whim of whomever is appointing the judge at the moment. I'm not convinced either method works well, but also have no better idea.

Matthew B. Novak said...

Being a practicing attorney, and practicing in front of many lower-court judges in multiple states, my perspective is basically that judges who actually follow the law are extremely important. I have very little input as to the best way to get those judges.

Mike said...

"Judges who actually follow the law are extremely important." It seems an inarguable statement, and yet here I go.

The law is inherently open to interpretation. Matt, you've probably encountered judges that flat out ignored it (I've no doubt such exist), but you've probably also encountered judges who follow it but from a far different perspective than you on what it actually means.

Jeff indicates that his choice is between two judges who both "follow the law". The interesting question in this case, in my opinion, is whether following the law is sufficient justification for judicial retention if said following runs counter to ones own interpretation.

To expand on my first comment, I'd say in general, the decision should be made based on which side of the appointment-vs-election debate you fall on. In other words, if you avidly support judicial appointment, you shouldn't oust Calabria. If you are okay with the election process for judges, then I'd go with Gray. (And of course, if you are an "X-Men" fan, I'd write in "Jean Grey". Because that would be awesome.)

Matthew B. Novak said...

On the lower court level I think you'd be surprised at how rarely there are "different interpretation" questions, and how frequently there are clear and unambiguous laws that judges decide to "interpret" away.

That's, of course, on a more local level. On an appellate level the calculus probably changes and I'd be more inclined to ask not "how does the judge interpret the law" but "how does the judge see the role of the appellate court in relation to the lower courts?" That is, how willing are they to step in with their interpretation of the law? I think that's the question I'd want to know of my appellate court. Because the appellate court is about correcting mistakes on the lower level (following the law) and funneling harder cases to the higher courts (substituting their interpretation).

Matthew B. Novak said...

As a note, I know my comments weren't exactly responsive. I guess the point I was trying to make with them is that, for those actually in front of the court, there's a very different calculus to what makes for a good judge, then there is for those in the public at large.

Judges are there to apply the law to specific cases, not to set policy. It's important that our legislators do their jobs correctly, and actually address the hard issues. And it's important that we citizens not expect the courts to clean up the legislature's messes.

I think "Don't Ask, Don't Tell" is a stupid policy that hurts our military and our country and accomplishes nothing useful. But I also think it would be infinitely better if the legislature threw it out, and not the courts.

Matthew B. Novak said...

That last paragraph was a "for example" btw.

AnnoyingJoe said...

The Supreme Court, and the effectiveness thereof is ample evidence for lifetime appointments not subject to removal based upon partisan ideology.