Super Lawyers
William C. Altreuter

Thursday, January 17, 2008

Stupid and corrupt is not the same as unconstitutional. I guess I knew that, but it makes me sad that one of the consequences is that New York's stupid and corrupt judicial selection system gets to stay in place. You don't see a lot of 9-0 decisions out of this Supreme Court, but they held their noses and reversed the Second Circuit.

“I think it appropriate to emphasize the distinction between constitutionality and wise policy,” says John Paul Stevens “The Constitution does not prohibit legislatures from enacting stupid laws.”

Anthony M. Kennedy threw in that, “If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now.” You'd think so, wouldn't you? Of course, judges think that any process that finds them on the bench amounts to a merit selection system, and most lay people, to the extent that they think about it at all probably reckon that the best way to select any sort of public official is to vote for them. Isn't that what we learn in school? Isn't democracy the best way to decide everything?

No, it is not. As Justice Scalia commented, New York's present system "leaves judicial selection to voters uninformed about judicial qualifications and places a high premium upon the ability to raise money.” That's bad enough, but it doesn't even touch on the real heart of the issue-- there is nothing about being a judge that suggests that the person doing the job should be attuned to the popular whim. Quite the opposite, I'd say. Voting for judges is the absolute worst way to get good judges-- if you get a good judge by popular election-- and we do-- it is a coincidence, not a validation of the process. AS Justice Kennedy windily puts it, "When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections."

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