Where Went Da Judge?

There’s been an interesting discussion going on over at PrawfsBlawg about retention elections vs. impeachment for judges. You may recall that some judges in Iowa lost their retention election because they found a same-sex law valid under the state constitution.

Electing judges, in general, seems to be a pretty bad idea. I know that strikes at the core belief of Americans (and singing competition reality show watchers everywhere) that voting is the One True Way to make decisions in a democratic society. But being a judge is a very highly skilled profession, and one in which it is difficult for most people to measure quality.

In these contexts, “Is person A going to be a better judge than person B?” can often come down to name recognition, whose picture is nicer in the voter’s pamphlet, or who looks like they have the Right Politics. But to me, electing judges is like holding an election to determine if someone should become a board-certified doctor. Are the voters the best ones to make that call? Sure, the person has an MD and they have an interest in the heart — is that enough to know they’re ready for board-certification (which is theoretically an honor denoting advanced expertise and ability)? Similarly, someone with a JD and in interest in becoming a judge isn’t enough for the voters to make an informed call.

So if not that, then what? Gubernatorial appointment? Well, let’s look at Iowa again. There, the state justices just named Mark Cady to be their new chief. Cady happens to be the one who authored the same-sex opinion that got the court in trouble politically. He also was named to the bench originally by a Republican governor in 1998. That governor left office, but is now back, and this time he says nobody who would vote for the same-sex rights would be asked to serve on the bench.

Again we find ourselves in a maelstrom of politics, not evaluating the abilities and skills of the potential jurists. So this doesn’t look like such a hot idea, either.

Absent a clearly better idea, I tend to lean toward an appointed commission, comprised of current members of the state bar and appointed by leaders of the state legislative bodies and the governor. The appointing bodies can ensure that the political makeup of the commission is heterogeneous and matches the political makeup of the other two branches (which, presumably, matches the state as a whole). Because the appointees are all lawyers or judges themselves, they’re in a better place to evaluate judicial quality (one would hope).

So what would this commission do? There are a couple of approaches. First, they could be a review panel. In this model, all applicants for judgeships (or nominees) go through the panel first for a gold star or a whoopee cushion. Then the governor selects from the gold-star list. In that approach, the commission acts as a sifter, increasing its workload but potentially broadening the array of possible candidates.

Another option would be for the governor to nominate, the name(s) to go to the commission for an up/down approval, then — and only then — would the governor’s nominee be promotable to the bench. This allows the governor to shape public conversation more in terms of who is in line for a judgeship. But it’s fiddly, and smells bad in terms of separation of powers in most, if not all, states.

So I reluctantly settle on the commission-as-sifter model. Without retention elections, but with the possibility of impeachment. It’s not a perfect system. But in many places, it’s better than the status quo, I think.