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October 2, 2012
Why ARE Judges Elected Anyway?*

* From the Tacoma-Pierce County Bar Association's Bar News, September 2012

            Sitting side-by-side on the couch in our living room, my wife and I shared a good part of a recent evening reviewing our voting pamphlet and connecting dots.  This has been a yearly tradition for us for the five years of our marriage:  we sit and briefly discuss the candidates for a particular seat, make our respective marks, and move on to the next category.  The joke about our routine is we regularly vote for opposing candidates, resulting in my vote negating hers, and visa-versa.[1]  The fact is that our participation in elections offers no benefit at all to the candidates.  Except, of course, for the non-partisan races.

            While my opinion about many of the “political” races has little effect, my wife asks me about the judicial elections, which judges I personally know, whom I am voting for and why.  With few exceptions she votes for the judges I recommend.  In addition to my wife, friends and family members regularly ask for recommendations on judicial candidates.  These are highly educated (and often opinionated) folks, quick to give recommendations on partisan races, readily admitting that they haven’t a clue about which judge to vote for.  Speaking to the attorneys around my office, there is definitely a trend that the uninitiated defer to the lawyers they know, not only for legal advice about their neighbor’s tree leaning perilously over their property line, but also about judicial elections.  From time-to-time I’m also asked:  “Why are judges elected anyway?” 

           One rationale behind judicial elections is the belief that the public wants to be involved in the process of who will sit in judgment over them.  I’ve spent some time sitting in ex parte and municipal court, listening to a commissioner or judge patiently listening to a pro se’s story before, inevitably, ruling in favor of the other side.  While the reasons for the decision may be reasonable, if not obvious, to the lawyers in the room, the pro se’s reaction often demonstrates a complete lack of comprehension, combined with some embarrassment and anger.  Perhaps elections give these pro se litigants an opportunity to level the playing field, or perhaps they might feel empowered by the opportunity to have their voice heard by voting for whoever runs against that judge who failed to hear them.

           A stalwart defender of the importance of the public’s participation in the judicial process, I conducted an official poll while waiting in line to pay a fee on the 8th floor of the Tacoma Municpal Court.[2]  The construction worker I spoke with told me that the kindly judge reduced his charges for driving without a seatbelt and talking on his cell phone, and that he would certainly vote for that particular judge “against all comers.”  The gentleman holding a paper-bag while in line and preparing to arrange payments for two counts of public intoxication admitted that while he rarely participated in voting, he never took the time to vote for judges because “one’s just as good as the next.”  I also appreciate the candid remarks of the young lady in line to pay her speeding tickets after the judge did not reduce her fines:  “I vote for the ones with the best names.”

           The results from my laboriously scientific poll, combined with my conversations on the topic with friends, family, and co-workers, demonstrated to me that those voting in judicial elections tend to fall into two groups:  those who care about their vote and those who don’t.  The latter group may be easily swayed by the countless and colorful signs and posters along Schuster Parkway and in our neighbor’s yard; the former group may be easily swayed by the lawyers they know or may have a bone to pick with a judge who ruled against them.  My take-away from this is that, sadly, I seem to care more about the public’s participation in judicial elections than the public does.

           Even if the public’s participation in the process is not important to the public, the standard fall-back rationale for judicial elections is that of accountability.  Thomas Jefferson spoke of the necessity “to introduce the people into every department of government,” including the judiciary.  By making judges subject to regular elections, the people function as a check and balance upon the judiciary, forcing judges to be held accountable to the people.  The reasoning follows that a judge must therefore make “better” decisions or fear the wrath of the masses and ouster upon the next election cycle.

           But accountability alone is not enough to warrant subjecting judges to the unbridled torture of the election process.  Putting aside the stress and the time required from a candidate, the cost alone seems unfair.  During a recent meeting with a judicial candidate, I learned that the candidate expected to spend upwards of $100,000 during her re-election campaign.  Imagining accountability in the worst way, I fear that a wealthy individual with a vendetta against a particular judge could bankroll a challenger and both bankrupt a sitting judge without the capacity to fund a campaign and give an inept challenger a seat on the court in one, foul swoop.  That can’t be right.

           Perhaps a loftier – albeit nebulous – goal to participation and accountability might be seeking out the best and brightest judges, period.  These individuals would, ideally, hold themselves accountable to the public as a matter of principle.  The process of electing these individuals would be taken out of the hands of the general public for the reasons already discussed, and to deflect much of the political debate surrounding the appointment of judges in the federal context, the judges would not be appointed by the governor.  Rather, judges could be elected/appointed to a 6-year term by committee.  The committee’s make-up could be revolving on a year-to-year basis, and would include red, blue, and independent partisan members with both legal and non-legal backgrounds.  Those who care the most about the make-up of the Tacoma-Pierce County judiciary would hopefully demonstrate the sincerity of their caring by volunteering for a term on the committee.

           To make this change, of course, would require our legal community to lead the way.  We must rally our friends and family in support of such a radical change.  If the public ultimately rejects our alternative, at least we would be contented by the knowledge that they care enough about their participation to vote for it.  But perhaps they might agree that a committee would know best.  Or perhaps, as in many judicial elections, they won’t be troubled to vote at all.  In which case, while the result would deprive the general public of participating in the election of their judges, it would save judges from the trauma of the election process while continuing to elect the best of us to the bench.

[1] For the record, we do agree on many topics; it just so happens that politics is not among them.

[2] I was caught with out-of-date car tabs; never again!

 

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