Sunday, October 21, 2012

Hey, I haven't heard from you in months! Oh, it must be election season.

I can always tell when advance ballots start arriving in my friends' homes by the emails. Inevitably, my non-lawyer friends (and I do have some non-lawyer friends) email me to find out which judges they should vote to retain. Our appellate judges are appointed, but then face retention votes every few years. (I want to say 6, and, yes, this is something you should expect me to know. Bad Sarah.)
In my county, our district court judges are also appointed, though there are some counties that elect their judges. So for most of my friends, I simply offer advice on whether any of the judges are deserving of a no vote.
This process I go through every election season highlights one of the reasons I disapprove of electing judges. The reality is that most people who don't use the court system much simply aren't in a position to place an informed vote. They don't know which judges ignore the law or mess up the rules or are incompetent, extremely fair, or whatever other qualities they might value in a good judge. At best, they hope to have a lawyer friend who can tell them if there are any judges they shouldn't vote for. At worst, they might know which particular criminal sentences sparked outrage for being too lenient, even if they know nothing about how the judge arrived at that sentence.
The appointment-retention election method of judicial selection is exponentially better than direct elections of judges, of course. Judges should never be elected, having to campaign and win votes with all of the politicking and promise-making that entails. I'd prefer that they not even be voted on by the public in the retention process, either, because I'm not comfortable with the idea that a judge could be voted out for making a ruling that is unpopular. A good judge should make the unpopular decision when it is legally warranted and shouldn't hold back out of fear of losing her job.
But since judges almost never lose the retention election, practically it's not an actual problem. Even when particular judges have been targeted by groups campaigning for a "no" vote, they have still easily won the vote. Perhaps the bigger problem with the retention vote system is that it leaves us without a realistic way of removing a judge who truly does deserve to lose his or her job.
As long as we retain the retention vote, though, I will happily continue to respond to all of my friends' requests for assistance because as long as the question is on their ballots, I want them to have some idea how they should vote.

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