Outside Counsel

I've been meaning to write about the federal court ruling striking down New York's system for judicial nominations-- in a way it's an exciting development, even though, in another way it's still "Meet your new boss/Same as the old boss."

As I have argued many times before, there is no reason at all to elect judges democratically. For the most part a judge's job is to make rulings on the law, rather than to respond to popular opinion about what a ruling should be. You want someone to respond to popular opinion? That's what the other two branches of the government are all about. Judges should be selected on the basis of their ability to do the job-- but instead we pick them by virtue of their loyalty to their political party. I suppose the same could be said about the merit selection process for federal court judges-- but let's face it, finding a poor federal court judge presents a much greater challenge than finding an indifferent state court judge. As a purely empirical matter that has to tell us something. The judicial nominating convention system was particularly egregious, but I don't really see how judicial primary elections will improve things. I suspect that the cost of running a campaign just went up, and we are still placing the selection process in the hands of persons ill-equipped to properly evaluate the candidates. Party chairpersons ran the conventions (and will continue to control access to the primaries-- let's not kid ourselves). The party faithful vote in primaries. With all due respect (as we say when we are about to slam someone) neither of these groups have much of a handle on what makes a good judge. Party chairs know what make a good Republican or a good Democrat, but that is not at all the same thing. Party faithful are looking for a judge who will say, "I'll put crooks behind bars", but since that is a jury function, what you really have in such a candidate is a disingenuous character who is probably prepared to say anything if it'll get him on the public payroll.

Part of the problem with merit selection, I suspect, is that the most visible example of it we have is also the most disfunctional. The rigmarole surrounding the confirmation hearings of US Supreme Court nominees is not typical. Generally speaking the Senate Judiciary Committee does a respectable job screening district court and circuit court candidates. You couldn't say they do a great job-- Orin Hatch politicized the process during the Clinton years, and badly served the judiciary and the country in so doing; but I'd give them a "B". A "B" is a lot better than the system New York has been using-- if a federal district court judge says it's so bad it's unconstitutional, that's pretty bad.