In my home state there is currently a mounting call for a change in the way Judges are selected. Ostensibly based upon the desire to lessen the effects of politics and money upon the selections of those to whom we entrust the interpretation of our laws, this trend mirrors similar calls throughout the nation for the appointment, rather than the election, of state judges.
This concept re-emerges here in the wake of a few high-publicity cases involving unacceptable behavior by a few judges: in one instance a sitting Supreme Court Justice pled guilty to accepting money for signing an Order placed before him. Of course, there is always the worry that the need to raise funds for political campaigns can, and some say necessarily does, compromise even the most pristine judicial candidates from the outset.
The focus of the latest proposal made by many who would "reform" the justice system is to trade in the notion of popular election of judges for "merit selection"! The way this scenario goes, only those candidates previewed and rated as qualified by "non-political" screening panels would become eligible to be named to a judgeship by the Governor, Mayor or local chief executive. In this way the twin evils of money and politics would supposedly be removed from the selection of judges.
Not to be contrary, but there are problems with this proposal.
First, lest we forget, the judicial system is not a detached yet informative and entertaining tangential part of American life, like "The People's Court". It is a part of our body politic: we are governed by its decisions in various spheres of our lives as surely as we are by the other branches of government. Judges issue "rulings": that is not just an accident of language. This being the case, something serious is lost when the consent of the governed is dispensed with in the selection of those who will do the governing. Being that so many of those calling for this change are from the conservative end of our political spectrum, I am surprised that this core concern in our nation's founding has eluded them here.
Second, we're not all so naïve as to accept the proposition that politics and money have no role to play in non-electoral selection. Throughout our history there have been many examples of change back and forth between election and selection for many offices, and usually the resolve has been in the favor of popular sovereignty and against what used to be called "backroom politics". Why? Because the effects of money and influence are magnified by the removal of the electorate from the equation, not reduced thereby. It seems inconceivable that we now would be ready to trust the relative opacity of selection panels more than the relative transparency of elections.
To those who point to the Federal system as a model of selection, let us make a few observations. The nomination of Federal judges is in fact a most political act, usually made through the senator of the state involved who is also a member of the President's political party. Then the confirmation of the Senate is required, often by vote cast along party lines. Indeed, in recent times confirmation of Federal Judges have been stalled in committee due to political considerations having no bearing on that person's fitness to serve. Several Clinton appointees languished unconfirmed while the Federal Judiciary remained understaffed for years while the political drama played itself out throughout the remainder of his term. Earlier in this President's tenure we all heard the threat of a "nuclear option" as a political response to the minority party's challenge to several of the President's nominees.
In the past, conservatives bemoaned the "activist" Federal Courts who "legislated from the bench" until they gained the power to appoint. When that happened, they elevated their own firebrands: "strict constructionists" who espoused a different ideology, many of whom had been active in the politics, and fundraising, for the right-of-center. This shift has had a tremendous effect on the Federal Courts; and all has been accomplished within a system powered by politics and contributions, screening panels and "merit" selectors, and without a single voter!
Third and perhaps most important of all, this desire to get away from the politics of the checkbook takes us farthest away from that other concept of "checks" - the one that usually accompanies "balances". Our system has been calibrated to have separate branches of government with defined areas of authority in order to ensure that no branch arrogates more power to itself than it should have. This, of course, does not always work perfectly, but it would function far less well if there were blurred distinctions between the branches and the powers and duties of each.
Removing the voters from the judicial selection process makes the judicial branch of government a pawn of the executive. Taking the power of election away from the people eliminates the most powerful deterrent to a Chief Executive appointing her/his old college roommate, or biggest campaign donor, or most trusted political operative to the bench. This is not to say, of course, that such things cannot and do not ever happen electorally - they do. But when they do it is because the people have permitted it, voted for it, endorsed it - if only tacitly - and they can reverse their decision the next time around. Taking that power from the electorate to give it to the executive is no more than a wholesale power imbalance, the likes of which the public can have little control over. Such a move cancels the greatest check a democracy can claim - the ballot box.