Many years ago, a governor filled a vacant judgeship with an attorney who didn’t live up to expectations. When the judge died, a friend called the governor to ask if he would attend the funeral. “Why should I?” the governor said. His friend replied, “Because not every governor gets to bury his mistakes.”
That’s an argument for electing judges: Let the public make the mistakes, not politicians presumably beholden to someone or some group. Besides, advocates of electing judges say, subjecting them to the voters keeps their heads on straight.
This fall, though, Ballot Question 1 will ask, “Shall the Nevada Constitution be amended to provide for the appointment of Supreme Court justices and District Court judges by the Governor for their initial terms from lists of candidates nominated by the Commission on Judicial Selection, with subsequent retention of those justices and judges after independent performance evaluations and voter approval?”
Former U.S. Supreme Court Justice Sandra Day O’Connor said “yes” in a New York Times commentary, arguing that campaign spending and fundraising taint the judicial process. Nevadans know about that. A 2006 Los Angeles Times series raised ethical questions about several past and present local judges. Although the reports shed more heat than light, they demonstrated that when judges need to raise campaign funds, contributors have been known to benefit. As O’Connor said, “In our system, the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and to the Constitution. Courts are supposed to be the one safe place where every citizen can receive a fair hearing.”
Thus a problem with judges in general. Consider the U.S. Supreme Court. Whatever your politics, you probably consider justices you agree with fair-minded, and the other side corrupt and shaping results to suit their prejudices. If that problem does exist, increasing the number of appointed judges seems unlikely to solve it.
Nevadans for Qualified Judges quotes O’Connor on its website (morequalifiedjudges.com) and cites its reasons for wanting judicial reform: The public lacks information about judicial candidates, campaign money raises issues of fairness and half of Nevada’s judges run unopposed, giving voters little choice anyway.
It’s hard to learn about judicial performance, but shouldn’t voters be able to read enough news accounts and campaign literature and talk with informed friends to form an opinion? While that may not be easy, they usually aren’t willing to make the effort.
Also, judges still would have to make it through the appointment process and then run later on a merit system. O’Connor praises states that make the selection committee interviews public, which is helpful but still no guarantee of a better choice. And what’s to stop money from affecting the subsequent merit election—especially when the Supreme Court just gave a corporation the same First Amendment rights as a person?
Nor does that necessarily reduce the chances of partisanship as supporters contend it would. Nevada changed its judicial elections from partisan to nonpartisan in 1915. In recent years, though, both major parties or groups tied to them have been issuing lists of preferred candidates, who in turn campaign harder with their party. And our worst judicial scandals have involved judges from both sides of the aisle.
Oddly, the point about judges running unopposed may be the best argument for a judicial selection system—and not because it means voters have no choice. The 2010 ballot includes several perennial judicial candidates. Perhaps all want to serve and would be fine judges.
Many lawyers with judicial ambitions don’t run for judge, mainly for the reason that critics of the system cite: the sense of pain and prostitution that fundraising can create. And the number of courtrooms has mushroomed in recent years in response to population growth and our general litigiousness, requiring more and better judges. Instead, we have ended up with some judicial embarrassments.
We are loath to limit democracy. But Nevada long ago quit electing the state superintendent of education, Supreme Court clerk, state printer and surveyor general. Some legislators have tried to introduce an appointment process to those governing our educational system. Should we ask less of the judiciary—and of ourselves?