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Could there be a
better way to pick judges?

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Washtenaw County Courthouse

Washtenaw County Courthouse

By Tom Clynes | tomclynes.com

Among the most hotly debated topics in judicial politics today is whether judges should be chosen by election — as is the case in Michigan and many other states — or by appointment.

 Competitive elections are, ostensibly, the most democratic way to make judges accountable to the public. But electing judges is problematic. Elections often produce judges who have connections, name recognition and money, rather than judges who are most qualified for the job. 

Last year, the American Constitution Society for Law and Policy published the results of a study on the effect of campaign contributions on judicial behavior. The data confirmed what former Supreme Court Justice Sandra Day O’Connor and many other judicial observers have long argued: Judicial elections impair the fair administration of justice by fostering impermissible appearances of bias by judicial candidates and judges. By seeking votes and acting like politicians, judges lose their credibility as neutral arbiters.

Because most of the public has so little knowledge about judges and because Washtenaw County incumbent judges are almost never defeated (or even opposed), local elections have become a game of insider baseball. They really don’t hold judges accountable. On the contrary, they’ve evolved into a pseudo-democratic smokescreen that allows judges to hold their seats as long as they like.

In Michigan, judicial races are supposedly nonpartisan; party affiliations don’t appear on ballots. But political parties are extremely involved in manipulating judicial campaigns and choosing candidates; thus, courtrooms all over the state have become increasingly politically polarized.

It’s also getting more expensive to mount a campaign for a local judicial seat. The maximum contribution limit to judges’ campaigns was recently doubled to $6,800 per individual, or $13,600 for a married couple. As a result, the flow of big money into local judicial races is increasing. 

“We don’t know how many of our friends will give the upper limit,” retired Judge Patrick Conlin Sr. said of his son’s campaign, “but we certainly hope that some of them will.”

Campaign finance rules are esoteric and a little tricky — even for those who attempt to follow them to the letter. For instance, judicial candidates can’t “solicit” attorneys, but they can “suggest” that attorneys give an amount up to $100 — though the attorney can choose to give more. Candidates can also suggest higher donations to non-attorneys — including, say, an attorney’s spouse, business partner or employee.

At the Supreme Court level, several states have adopted appointment/retention systems (also known as “merit selection”) which rely on bipartisan nominating commissions. The commissions suggest candidates to the governor, who then picks from that list. Voters then periodically vote on whether to retain the appointed judges. While this approach can reduce the flow of special interest money to the judiciary, some critics claim such a system is undemocratic.

A few states have adopted a middle ground approach, using public financing to reduce special interest money while still conducting judicial elections.

Robert Davidow is a retired professor of law at George Mason University who now lives in Ann Arbor. He suggests a nominating commission consisting, for example, of two lawyers (elected by lawyers), two judges (elected by judges), two academics (one elected by non-law school  faculties and one elected by law school faculties) and six people (including one lawyer) popularly elected through a system of proportional representation.

“Each member of the commission would nominate one person,” says Davidow. “Final selection would be by lot from among the nominees. My goal is to further the effort to secure a more representative … and competent judiciary. I am flexible with regard to the composition of the nominating commission, but it would have to be diverse. I am committed to final selection by lot.”

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