Debate: The Crowd Shouldn’t Vote On The Umpire
October 20, 2016 (Fault Lines) — Ed. Note: In light of the attack ads against a candidate for the Montana Supreme Court candidate, we have charged Noel Erinjeri and Chris Seaton to debate the question: Given the attack on Montana Judge Dirk Sandefur, should judges be elected? This is Noel Erinjeri’s argument:
Quis custodiet ipsos custodes? Who watches the watchmen?
The basic problem of public affairs is how to answer that question. The fundamental insight of the English (and later, American) systems is that they were the first to draw a distinction between the State and the Law. The English did it gradually, starting in 1215 and continuing through 1645, 1689, and up through the present; we did it all at once, in 1789.
Any schoolchild can tell you about the three branches of government and about checks and balances. And the judicial branch needs checks and balances just like the other two. I’ve written a number of times about the need for an informed electorate, because people knowing what the hell they’re voting about is the ultimate check and balance. That said, this shouldn’t apply to judges.
The political branches, at bottom, are advocates. Presidents, congressman, governors, all the way down to the smallest village council; they are there (ideally) to do what’s best for the people. And if the people disagree about what’s best, or with how the politicians are going about it, they vote the bums out. That’s not why judges are there. Judges are not advocates. They are arbiters. As such, they should be insulated as much as possible from the political consequences of displeasing the electorate (meaning, having to run for re-election) so that they may focus on the legal consequences of their decisions.
Phrased another way, a politician’s job is to give The People what They want, or at least what They need. A judge’s job has nothing to do with The People. In fact, oftentimes a judge has to deny The People what they want on behalf of the people who are appearing before him.
The biggest problem with electing judges is that the electorate does not have the tools to make a knowledgeable decision. Consider the case of Judge Aaron Persky. Persky had been on the bench since 2003, yet no one outside the Santa Clara County legal community had ever heard of the guy until the Brock Turner case. And yet, the mob wants him off the bench because of one bad decision in which he showed (an excessive amount of) mercy.
What does the general public know about the thousands of other defendants he’s sentenced? Is he a hanging judge, reflexively maxing out everyone who isn’t a fellow Stanford athlete? Is he a soft touch, assessing fines and community service for mass murder? I don’t know, and neither do the morons who want him off the bench. But the prosecutor and public defender in Santa Clara County both agree that he’s a good judge, and these are two groups of people whose entire job is to disagree with each other. It’s a very bad idea to elect a judge when voters don’t have 99.9% of the necessary information and can rely entirely on whatever clickbait fueled outrage happened across their Facebook feed.
The debate over judicial elections comes down to a question of accountability. Lifetime appointments, like the federal system, could lead to robed aristocrats issuing diktats that have nothing to do with the law and everything to do with their policy preferences. Making judges run for election lead to the danger of judges doing what’s popular at the expense of what’s right, or at least what’s legal. Nevertheless, it doesn’t have to be one or the other.
A hybrid system is the Missouri Plan, which about half the states use variants of. It goes like this: when judicial vacancy occurs, a committee established for that purpose takes applications from any lawyer who meets the minimum qualifications for the job. The details of who’s on the committee varies, but typically it consists of an equal number of lawyers and non-lawyers along with a judge as the chairman. The committee selects a slate of three applicants and presents it to the Governor, who makes the final selection. Judges then face a “retention election,” in which voters don’t decide between candidates but only whether the judge should keep his seat. If she loses (which is pretty rare), the committee picks a new list of three, and so on.
Of the election, appointment, and hybrid systems; the appointment system is the best (though the hybrid system is a decent compromise). While it’s inevitable that some politics will enter into the choosing of judges, the key is what happens after the judge takes the bench. If he has to answer to the electorate every four years, it provides an incentive to pander to a public who, for the most part, don’t understand the law or how it works. But if his job and his position is secure, we can at least be sure that whatever decision he makes isn’t motivated by the fear of losing a paycheck.
Rebuttal: Chris writes: [T]he only solution that makes sense is a system where judges are held accountable in elections, just like every other member of our government.” (Emphasis added.)
Except, judges are not like every other member of our government. Politicians serve the people. Judges serve the law. When judges are forced to run for election, they must serve two masters, and a noted legal scholar already pointed out why that’s a bad idea.
Sur-Rebuttal: Persky was elected. If elections are supposed to prevent Brock Turners, they’re doing a bad job of it.
 Literally, “Who will guard the guardsmen themselves?”