walrusjester inspires again
Judicial retention elections. Wha?
Yes, this is comment-bait for goobermunch. I'm not ashamed of that. But others should please include their responses to my statement: judicial retention elections are dumb.
I've heard a lot about how retention elections politicize the judicial branch, and I'll touch on that later, but frankly that's not even my biggest complaint.
Here's my biggest complaint: why should I get to decide on the job performance of a bunch of judges who I've never seen in court and whose opinions I'm never read? And even if I did go out and sit in court and read up on opinions to make an informed vote, am I really qualified to decide it?
So what I do is I read the evaluation by the committee and I pretty much do what they say to do.
And then of course there's the political aspect of it all, which is pretty tedious. Judicial branch philosophical differences are very different than their counterparts in the other two branches, and the decision-making is generally based on form, process, and precedent rather than whether or not something is what people want. And that's how we want the judicial to be--not wondering how their decision will be received by special interest groups.
Judges should be evaluated on two criteria: the first is their effectiveness, and the second is their judicial philosophy. On the first point, do they know the law to the level we expect from judges? Can they communicate with people in court? Do they seem to be a good referee in court--mostly impartial and generally consistent? Do they write opinions clearly and with well-constructed arguments?
The second is the question of how law gets interpreted. Some philosophies are just outright incompatible with our legal system. Two examples: The law is whatever the judge feels is right at the time, and the law is whatever the government decides must happen right now (ahem, China). In other areas there's wiggle room: when the law is ambiguous does the judge try to infer what the legislature meant and how far can that go? Do precedents outside the jurisdiction count? When and how can precedent be thrown out?
Clearly a judge can be seriously below the standards we hold in either or both of these areas. And in the case of someone who seemed reasonable but after a few years is demonstrably awful, you need some way to get them out. So the problem judicial retention elections try to solve seems (at least potentially) real, but the solution is awful.
Voters are not the folks to do this. They don't have the time or skill necessary to inform themselves of the context, weight, and implications of the various issues that might arise.
So, as a starting point (perhaps a bad one), here's an alternative idea:
What if we had the existing review process where they put together the reports, but instead of going to the general public, the question of retention went to retired judges, and then only if the committee were not unanimous in recommending retention? Another alternative would be a random sample (kind of like a jury) from those licensed to practice law in the state?
Asking unqualified people to make a collective decision from inadequate information is just begging to turn the question of retention into a question of politics, especially in the context of legislative and executive branch elections. Lacking politics, there's not much else to go on but to rubber-stamp the committee's recommendations.
Yes, this is comment-bait for goobermunch. I'm not ashamed of that. But others should please include their responses to my statement: judicial retention elections are dumb.
I've heard a lot about how retention elections politicize the judicial branch, and I'll touch on that later, but frankly that's not even my biggest complaint.
Here's my biggest complaint: why should I get to decide on the job performance of a bunch of judges who I've never seen in court and whose opinions I'm never read? And even if I did go out and sit in court and read up on opinions to make an informed vote, am I really qualified to decide it?
So what I do is I read the evaluation by the committee and I pretty much do what they say to do.
And then of course there's the political aspect of it all, which is pretty tedious. Judicial branch philosophical differences are very different than their counterparts in the other two branches, and the decision-making is generally based on form, process, and precedent rather than whether or not something is what people want. And that's how we want the judicial to be--not wondering how their decision will be received by special interest groups.
Judges should be evaluated on two criteria: the first is their effectiveness, and the second is their judicial philosophy. On the first point, do they know the law to the level we expect from judges? Can they communicate with people in court? Do they seem to be a good referee in court--mostly impartial and generally consistent? Do they write opinions clearly and with well-constructed arguments?
The second is the question of how law gets interpreted. Some philosophies are just outright incompatible with our legal system. Two examples: The law is whatever the judge feels is right at the time, and the law is whatever the government decides must happen right now (ahem, China). In other areas there's wiggle room: when the law is ambiguous does the judge try to infer what the legislature meant and how far can that go? Do precedents outside the jurisdiction count? When and how can precedent be thrown out?
Clearly a judge can be seriously below the standards we hold in either or both of these areas. And in the case of someone who seemed reasonable but after a few years is demonstrably awful, you need some way to get them out. So the problem judicial retention elections try to solve seems (at least potentially) real, but the solution is awful.
Voters are not the folks to do this. They don't have the time or skill necessary to inform themselves of the context, weight, and implications of the various issues that might arise.
So, as a starting point (perhaps a bad one), here's an alternative idea:
What if we had the existing review process where they put together the reports, but instead of going to the general public, the question of retention went to retired judges, and then only if the committee were not unanimous in recommending retention? Another alternative would be a random sample (kind of like a jury) from those licensed to practice law in the state?
Asking unqualified people to make a collective decision from inadequate information is just begging to turn the question of retention into a question of politics, especially in the context of legislative and executive branch elections. Lacking politics, there's not much else to go on but to rubber-stamp the committee's recommendations.