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The Self Shelf: Judging the judge selection process

Published: March 25, 2011
Section: Opinions


In the status quo, there’s a problem in the United States judiciary system. Currently, 39 states elect their local judges. While this may at first seem like a fine example of the democratic process, I believe there are severe drawbacks that hurt justice and the perception of the judiciary as a whole.

The first area of analysis I wish to focus on is the purpose of the judiciary. When the framers first came up with the idea of the judiciary, it was based on the idea that it would be an impartial check on the will of the people. While the legislative branches were entirely democratically driven, the judiciary would be the one to make sure that laws passed never violated the constitution. Arguably the most famous example of this is the Supreme Court’s power of judicial review which involves reviewing acts of Congress to ascertain whether or not they are constitutional. The problem with having judges elected is that it leads to the perversion of any kind of impartiality on the part of judges. If a judge wishes to be elected (and re-elected), she must pander to the interests of the democratic will, which hampers her ability to be impartial. Take the example of Minnesota judicial candidate Tim Griffith. Already, he has announced that he is running on a Tea Party platform and that he opposes the judicial decisions against banning abortion and prayer in public schools (Minnesota Independent). He has turned the judiciary into a political soapbox. I’m not trying to argue that judges cannot have biases—this would be impossible—but instead that they should not be in the position of having to pander to their local electorate. It is difficult for a judge to be an effective check on the local legislature if they have to rely on the same votes of the people who elected the legislature. Finally, the idea of a judge doing what Griffiths has done—running campaign ads, going out to the people and promising them certain decisions—is quite alarming. A judge’s loyalty should be to the local constitution, not the local electorate. Judges campaigning publicly shatters the ideal of judicial impartiality.

The second huge harm of electing judges is the threat of special interests. Now that we have thrown judges into the political fray, it is only natural that special interests will want to sway judicial candidates by offering them campaign money. The same thing is considered a bad part of the electoral system with politicians but it is especially harmful with judges. To illustrate this point, I will provide an example. Imagine that the local gigantic company in your neighborhood lobbies the legislature and is thus able to get a series of lucrative dumping contracts, which results in toxic waste flowing through your backyard. Your recourse is to file for an injunction in your local county court. Unfortunately for you, the local company has also lobbied the judge and he delivers a partisan decision against you due to his interest in receiving funding for the next election campaign. The point is that the check on legislative interests is now just as susceptible to the harms of special interests as the legislature. At this point, it is hard to get an effective justice system. Additionally, these measures can lead to companies trying to stack courts ideologically in their favor. If you don’t believe me, you can consult the example of a West Virginia Supreme Court judge whose campaign was sponsored by a coal company who refused to recuse himself when dealing with a lawsuit against the company. Naturally, he was the decisive vote in declaring the coal company cleared of all charges. Finally, there is the danger of judicial candidates promising favors to special interests in order to get elected—it happens with politicians and it happens with judges in states that elect them. Thus, the judiciary, which is supposed to be the dam against the overpowering wealth and political capital of special interests, can be easily overrun by corrupt judges.

The final harm I wish to illustrate is to the perception of the judiciary. When judges don the black robes, they are supposed to lose their identity as a citizen and take up that of an impartial arbiter of society. When you have judges running attack ads or campaigning desperately for votes, it severely harms this image. The dangers of the loss of face are paramount insofar as the judicial branch thrives on legitimacy. If I were a homosexual in a district where the judge campaigned on an anti-gay marriage platform, I’m not going to feel I can get a fair trial if I’m brought before him. This will lead to insecurity and that leads to a loss of liberty. When I feel that I cannot fully live my life the way I wish to because I cannot get a fair trial, it is a huge psychological harm. If I were to be charged with a crime, I should face an enigma, an embodiment of the authority of the law. Justice has no political party—our justices shouldn’t either.

So how do I propose that societies select judges? I believe it should be by a by-partisan commission of some sort—equivalent to the Gang of 14 in the Senate seems like a worthy model. This may not be a perfect solution but it would be far better than the status quo. When justices wear the clothes of politicians, they cannot perform nor look the role of judges—it’s high time we made sure they wore the robes of non-bias that they are supposed to wear.