judgesonmerit.org

An editorial in the Washington Post calls for an end to judicial elections.   The editorial focuses on the expensive, partisan and bitter elections of 2010 (including the retention elections in several states) and concludes that this system just isn’t working.  “There are no perfect alternatives, but a merit selection system is preferable and would better shield judges from the most corrosive aspects of political elections.”  The Post proposes a system more akin to the federal system — with appointment by the governor and confirmation by the state legislature, noting that such a system would lead to a more independent judiciary.  Judges “should not be swayed by the political whims of the day, nor should they be made to think twice about making principled but controversial decisions for fear that they could lose their jobs.”  We agree, but still believe  that Pennsylvania Merit Selection proposals must include a bipartisan citizens nominating commission and a retention component.  This ensures public participation in the judicial selection process while keeping the focus on getting the most qualified judges on the appellate courts while getting judges out of the fundraising business.

The Washington Post’s fashion editor, Robin Ghivan, offers some real wisdom about our justice system in her commentary on the U.S. Supreme Court’s term-opening photo.  Observing that except for a lacy neckerchief added by Justice Ginsburg all of the justices stuck with basic black robes (no gold bars as former Chief Justice Rhenquist sported), Ghivan reflects on the powerful message of the black robe:

In donning the robes, the justices make a visual promise that they’re leaving personal idiosyncrasies, prejudices and desires outside the courtroom. They have tamped down individual preferences in service to the greater good, the general public . . . the law. The robes acknowledge that the justices have shed distractions in favor of objectivity, fairness and a common, high-minded purpose. The law is their religion. That’s where they place their faith. Their piousness may be imperfect — they are human, after all. But true devotion is worth striving for.

That pretty much sums up the ideal of fair and impartial judges.  And Givan is correct: the simple black robe is an excellent symbol for that ideal.  And that symbol sends a message both to the judges  and to the public:

The unadorned black garment telegraphs to the common man that he has a fighting chance in court. He’s not seeking justice from a ruling class or a royal family. He’s just coming before other men and women. The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don’t matter.

This is the system we have set up; the judicial robe imparts great power, but that power comes with serious obligations.  We should remember that the robe symbolizes the unique positions of judges in our system. As Ghivan concludes:

The basic black robe is fashion perfection. It sends a singularly powerful message: I am here to uphold the law, without prejudice.That message should stand alone. It does not need to be accessorized.

An editorial in the Washington Post makes some very good points about the trouble with electing judges.  Focused on the effort to expand Merit Selection to more judges in Maryland, the editorial is good reading for folks in any state where judges are elected — like here in Pennsylvania.

Elections, campaign contributions and the inevitable conflicts of interest they breed have no place in the selection of judges. For judges, drumming up campaign money — often from lawyers who appear before them — and marketing themselves undermines the perception of impartiality and can in practice lead to its corrosion.

These concerns of course become more pronounced as elections become more expensive, candidates raise more money from parties and lawyers who later appear before them in court, and third parties like political parties, corporations and unions unleash their own dollars to get their preferred candidates elected.

We expect judges to act differently from other public officials — to be faithful to the law without regard to popular opinion, political pressure, or campaign support.   Why, then, do we continue to use the same expensive, divisive, partisan electoral process to choose these very different officials?  The Washington Post offers a fine reason to stop doing so:

Judges are not — and should never be confused with — politicians. Insulating those who serve on the bench from the potentially corrosive influence of money and politics would help to avert cases of mistaken identity.

Merit Selection offers a fine way to avoid such confusion.  If we stop electing appellate court judges, cases of mistaken identity may still come before our courts but at least will no longer involve our judges.