Election 2014: Rambling on Judicial Races

How to choose judges is not something Americans exactly have a consensus on. In Minnesota, we have elections, but a lot of the time there’s sort of an end run around this by appointing people mid-term so that the first time they stand for election, they’re running with the advantage of incumbency. A few years ago the major parties started endorsing judges — I can’t remember where previously there was a rule against it, or if it was just not the custom. Judicial candidates tend not to trumpet their party endorsements and instead let you know subtly by mentioning various prominent people with known party affiliations as “supporters.”

There’s a group in Minnesota that’s lobbying to change the way we do judicial elections. They suggest a merit-based appointments system after which judges stand election every four years with a yes/no vote. I tend to think this would be a better way to do it, because it means that if someone’s really incompetent we can just focus on getting people to vote NO on that particular judge.

I am not personally an expert on all the different ways out there to pick judges. My father, on the other hand, actually is exactly that sort of expert. Actually, he’s expert on lots of things: he’s a Political Science professor with a specialty in the American judicial system, and he’s studied comparative judicial systems, the effect of contingent fees, mediation, and he did one project we all called the Lawyers in the Mist project where he spent about six months observing lawyers interacting with clients (with the permission of the clients.) Next year, his book Justices on the Ballot: Continuity and Change in State Supreme Court Elections is coming out from Cambridge University Press, and anyone who’s got a strong investment in the question of how we choose judges might want to take a look.

Possibly the finding from my father’s recent research that I found the most entertaining: there really is a town out there that elects its dogcatcher (well, “Animal Control Officer.”) So if you’ve ever heard heard somebody joke that Ole Savior couldn’t get elected dogcatcher, there’s actually a town he could move to where he could, in fact, add that to his collection of electoral losses.

The problem of avoiding partisanship in judicial races is one that doesn’t have a simple solution. My father gave me an extended explanation of a convoluted system that involves merit, a committee that makes recommendations, confirmation by elected officials (but with some rules in place to discourage them from turning anyone down without a good reason), and retention elections.

Alternately, you can just throw in the towel and embrace partisanship, which is more and more what Minnesota is moving to, I think.

Of course, there are all sorts of issues I want to avoid in the judiciary that are not as straightforward as liberal vs. conservative. I am very wary of judges who would assume that the police would never, ever lie (I kind of expect some degree of pro-police bias in judges, but in a situation where a dozen witnesses plus the physical evidence say one thing happened and a police officer says another thing happened, I want a judge who will be willing to at least ENTERTAIN the possibility that the cop is lying.) I am similarly wary of judges who have a bias toward the bigger, wealthier party in lawsuits, or who fail to realize the impact of being the target of a SLAPP suit has on private citizens. Finally, the sad fact is that when people run against incumbent judges, they’re frequently flakes or weirdos. I have a strong anti-flake bias regardless of office.

Anyway, at the moment most judges have dignified, non-partisan web sites that seek to communicate gravitas and hint in only the most discreet ways at whether they’re likely to swing liberal or conservative. Makes it harder. But! We are weeks away from the election so I’d better get going on this.

Just a note: I am only planning to research and write about the contested judicial races. (If there’s a serious write-in campaign happening in any of the uncontested races, please let me know.)

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