judgesonmerit.org

We often talk about the money problem associated with judicial elections, but another flaw in the system is the affect campaigning has on what should be an impartial judiciary. A recusal controversy involving a West Virginia Supreme Court Justice highlights this concern. In a post on The BLT: The Blog of the Legal Times, Tony Mauro writes that Justice Menis Ketchum declined to recuse himself from a case that brings a direct challenge to a law involving a state cap on non-economic damages that Ketchum promised he would not vote to overturn. Ketchum’s statements on the law came during his 2008 election campaign:

Ketchum, when asked about the law, made this statement, according to local West Virginia media: ‘I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.’

In refusing to remove himself from the case, Ketchum stated that: “I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.” In this statement he did not deny that he made the campaign promise or that he possessed a predisposition regarding the issue. Instead, Ketchum asserted:

While I am predisposed to do just what I said during my campaign – that I will not vote to overturn, change or otherwise modify the MPLA caps – as a jurist I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum.

This issue is larger than whether or not this judge can separate his campaign promises and preconceived notions from his current role as a jurist to make a fair ruling. Judicial elections force potential judges into political roles because of the need to fundraise and campaign. When judicial candidates go on the record regarding issues that later come before them as judges, it creates at a minimum the appearance of preconceived biases. This undermines confidence in an impartial judiciary because the outcome seems fixed from the start. Judicial selection should not place future judges in such a compromising position.

We’ve just been reading a 2007 article by three law professors comparing elected judges to appointed judges. The professors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — studied three areas — effort, skill and independence. The independence issue grabbed our attention for two reasons. First, we care about judicial independence and its relation to how judges are picked. Second, this part of the study was completely misrepresented by American Courthouse in a post against Merit Selection.

Here’s the cliffnotes version of the study. First, the authors’ definition of independence was itself unusual; they defined and measured “independence” as the frequency with which a judge dissented from opinions authored by a judge of the same political party. Second, the authors concluded that there was no statistically significant difference in this type of independence between elected and appointed judges.

So, why is this study important? Because of how the authors interpreted the results:

“It might be that the different systems [of selection] attract different types of people to judgeships. . . . In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. “

According to the authors, elected judges are “more politically involved, more locally connected, more temporary, and less well-educated than appointed judges. They are more like politicians and less like professionals.”

So, who do we want on the bench, politicians or professionals? If I’m going to court, I want a professional.