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Method of choosing judges is flawed, but it's the best we can do

This one had to be the plot of a John Grisham beach-read:

The CEO of a mega coal company spends $3 million to help put a judge on the bench. Selfsame judge casts the deciding vote — twice — to throw out a $50 million verdict against aforementioned coal company. Judge does this despite attempts to get him to take himself off the case in the interest of, you know, fairness and all. (It really did inspire a Grisham novel.)

Real-life hero of our story? The U.S. Supreme Court, which this week ruled that an elected West Virginia Supreme Court justice should have stepped aside in a case involving a big-money donor to his campaign.

Well, yeah.

All of which got me thinking about the age-old argument of how we get our judges. Elect 'em, or appoint 'em?

The Supreme Court's decision magnifies the obvious flaws in making judges, who are supposed to be independent and impartial, go begging for election money. Logically, the cash they collect often comes from people who are part of their tribe: local attorneys, many who appear before them.

Of course we know none of our good judges would do this, but there's always the smidgen of a chance that one rogue out there might favor a guy who consistently wrote him a check or disrespect one who didn't.

Another problem: Because judges are supposed to remain neutral and decide each case on its merits and the law, they're discouraged from talking about actual issues that might be on the minds of the voters, like, say, gay marriage.

So the folks who do the electing very often know little if anything about the judicial candidates on the ballot, unless they've taken the time to read up on rulings, reputations, lawyer polls and such.

To which voters say: yawn.

Or: like I've got the time for that.

But mostly just: who?

Case in point: You can find newspaper stories from around the country about the controversy over judicial candidates who changed their names to appear differently on the ballot.

They might try to sound more Irish or more Hispanic, depending on the audience. Someone with an ambiguous-sounding first name might add a feminine-sounding middle name thinking voters will say: "Hmm, don't know anything about any of these candidates, so I'll just vote for the woman on the list."


So we should appoint our judges, right? Form a committee of smart lawyers and responsible citizens to pick the most qualified applicants, and then send a short list to the governor for the final nod, right?

Guess what. Politics creeps in there, too. Maybe even more so.

Don't believe me? At a courthouse near you, regulars can often tell you who's going to get a judicial appointment ahead of time, depending not necessarily on qualifications but on who's doing the picking.

Often, they're right.

Fair to say that here in Florida, we've struck a pretty good balance between two flawed processes.

Supreme Court justices and appeals court judges are initially appointed. Trial judges are generally elected.

All of which may be the best we can do to keep who ends up on the bench — and why — from seeming stranger than fiction.

Method of choosing judges is flawed, but it's the best we can do 06/11/09 [Last modified: Thursday, June 11, 2009 7:36pm]
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