Super Lawyers
William C. Altreuter
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Wednesday, October 27, 2010

More for the Perils of an Elected Judiciary file. Outside Counsel friend Dan Kohane wrote this about the politicalization of the judicial races in the Eighth Judicial District. Briefly, it had been the custom in recent years for the local Democratic and Republican committees to cross-endorse sitting judges, but this practice was abandoned this year. Apparently the Republicans were excited about Carl Paladino and lost their heads, and as a result two very good veteran judges are in competative races. One is the former District Attorney of Erie County, the other is a sitting Appellate Division Justice, and the only Democrat appointed to the Appellate Division by (Republican) Governor George Pataki. As I have often said in the past, there is nothing about the job of being a judge that suggests that the democratic process is an appropriate method of selection, and indeed the opposite is more likely true. Judges aren't supposed to make the popular decisions-- they are supposed to make the correct decisions, based on the law, regardless of whether the decisions they make will be popular. In New York we try to insulate judges from the heat of popular opinion by having them sit long terms-- 14 years for justices of the Supreme Court. (Court of Appeals judges get 14 too, but are appointed by a merit-based selection system.)

I wish that New York was an outlier in all this, but sadly we are in the heart of the mainstream.  37 States have some sort of election system for judges, most commonly a "retention election". Judges are appointed, and then at some point they are put up for reappointment by popular election. In Iowa right now we have a good example of why this is a terrible idea: The Iowa Supreme Court unanimouslyheld that the constitution of the Hawkeye State compelled marriage equality, and now the three judges who are up for retention are the target of a campaign being waged by exactly the sort of assholes sane people should want to keep out of their sex lives.

The simple fact is that lay people are not qualified to evaluate judicial performance. Beyond that, judicial elections are an invitation for abuse.   All of the candidates have to raise money to campaign, and they raise it from the people who figure to be appearing before them. It's been an expensive ticket this go-round, but it always seems sleazy, even when it's just a hundred bucks. As bad as the rest of New York State government is, if I could only change one thing about it judicial elections would probably be what I'd pick.

See also, this.

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