Abstract
This paper looks at the controversy over election or appointment of judges, focusing on Nevada, after consulting with 5 newspaper articles which pointed out the horrific situation in Las Vegas and other parts of Nevada. Other sources were found to examine the arguments for and against the election of judges. It was found that both election and appointment of judges are fraught with problems, but that appointment has fewer dangers of political abuse, especially if the candidates are chosen by an impartial committee and the appointed judges are held accountable for their actions. Popular elections seem to have more problems, and the electorate seldom chooses based upon knowledge. It is not really useful for popular vote to control the one body that really should be non-partisan and objective, our courts.
Discussion
In looking at whether judges in Nevada should be elected or appointed, it is obvious that there are pros and cons on either side. Elections are popular with the people and also with those who would abuse this system. In addition, elections cost money and that must either be provided or the candidates must have some way to raise it. Thirdly, democratic elections require an educated electorate or else they degenerate into a popularity contest, not necessarily based upon reason.
Appointment avoids these pitfalls, but it has its own. Who makes the appointment controls the criteria upon which the appointments are made. The appointer must be unimpeachable and incorruptible. This probably requires that the appointments be made by a group, since it is more likely that a group will be resistant to corruption. However, the public does not see appointment as democratic or sensitive to public needs, so provisions must be made to change this perception. Neither method is foolproof.
The fact that elections for judges are popular with the public suggests that the public will not vote to change this. Many judges would vote for appointment, because they know the problems of this job, like Judge Brent Adams of Washoe County. (Whaley, Sean 2006) Philip S. Pro reminds us of why federal judges are not only appointed, but appointed for a life tenure. “The Federalist, Numbers 51 and 78, stress that permanent judicial tenure was essential to destroy all sense of dependence on the Legislative and Executive branches in making judicial decisions, and to ensure that federal judges would protect the Constitution against inappropriate political encroachments.” (Pro, Philip s. 2008)
He further states that “Judicial independence must, therefore, be viewed, not as an end in itself, but as a means to promote impartial decision making, and to preserve the Constitution against encroachments from the Executive and Legislative branches and from the popular political will of the majority at any given moment in time. Once judicial independence is understood as a means to these ends, it becomes apparent that independence also requires counter balance of accountability, otherwise an unaccountable judge would be free to disregard the goals that judicial independence is supposed to serve.”
What is precisely important in the former statement is that the judiciary must also be protected from the “popular political will of the majority at any given moment in time”. Majority rule is not always fair or logical. Sometimes the majority becomes a mob. Often the majority is less than well informed and vulnerable to emotionally charged and very tricky advertising. The truth is that most elections are won in the fundraising period, because money buys ads.
The horrible abuses cited by the LA Times (Goodman, Michael J. and Rempel, William C., 2006) and supported by the case studies of Gene Porter and Nancy Saitta, actually pale by comparison with some of the cases which are unpublicized, but which hurt people more than financially. One case in point centers around the election of Judge Mills Lane in Reno, Nevada in 1984. He ran on the “no tolerance” platform, especially where it concerns child abuse.
As county prosecutor he was expected to put his effort behind his words. So, when a 13 year old boy (name withheld) was found to have exposed himself and touched a five-year–old child (name withheld) whom his mother was babysitting, the following happened. The two mothers consulted, and the babysitter reported the problem in order to get help under Nevada law.
The boy was moderately retarded, and needed this help. The victim had been mostly just scared. He son was charged and the then prosecutor, Mills Lane, decided he should be tried for attempted rape in adult court to serve as an example. When this happened, the mother of the boy called the mother of the girl in distress. The girl’s mother went with her to court, and made a statement to the judge that she would withdraw her support for this prosecution, explaining that the entire reporting of the incident was done in order to get help for the boy, who was mentally challenged. She warned the judge that if he proceeded, he would have no witnesses, as she would not provide access to her daughter.
The case was dropped and the boy was remanded to child welfare services, which provided the needed services for rehabilitation as desired in the first place. The boy was rehabilitated, and he apologized for scaring his victim two years later, which was accepted by the fully recovered girl. Had this gone as originally designed by Mills Lane in order to promote his candidacy, the lives of both children might have been irreparably damaged. Elections often inspire the candidates to do things they would not otherwise do. In this case, the opportunity to be tough on child molesters was just too tempting. (information acquired from a confidential phone interview with the mother of the victim)
On NBC’s Frontline many arguments have been put forth against election of judges, but this is a hard reality to change. The problems of Texas over the years were cited as “problematic” for George W. Bush’s (then governor) campaign for President. “In this article for the Cato Institute, a libertarian research group, author Robert A. Levy says that “there may be good arguments for merit selection of judges followed by periodic, unopposed retention elections.
But contested elections raise serious questions. They’ve become inordinately expensive, create a perception of impropriety, and may produce judges beholden to deep-pocketed donors with recurring business before the court.”” (CATO Institute, Aug. 13, 2001) This is a possibly modification of election of judges that might help, but it seems like the problems in Nevada are really to extreme for this to work.
In fact, because changing from elected to appointed judges requires a constitutional amendment, it will require a huge and expensive political campaign to make this change, since voters will have to be convinced it is in their best interests. North Carolina funded a review of its system in 1994 and that Commission for the Future of Justice and the Courts in North Carolina recommended to Chief Justice Burley Mitchell that North Carolina begin appointing judges.
Sadly, appointing judges has its own drawbacks. The most troubling is the decision of who does the appointing. It is no less partial to appoint judges if the appointer is not impartial and incorruptible. It is less costly, but the public is not in favor of appointing judges as they see this as taking away some of their historical rights, even if they always just picked a name, since they knew none of the contestants.
One alternative is the Missouri plan: a local lawyer-citizen commission advertises for applicants, selects three, and submits them to the Governor for appointment of one. 27 states follow this plan at the trial level and 23 do not. “We must not forget the drawbacks of appointing judges ….. The Missouri Plan can be guilty of the worst kind of politics – – Bar politics. The public and press never know which lawyers and law firms lobbied for nominees named by the commission, and so it may never know an opposing lawyer in a lawsuit has an inside track with the judge because of his or her firm’s support of the judge before the nominating committee or the governor.” (Ritter, John A. 2008)
Many former judges are in favor of appointment, because the electorate is seldom focused upon the election of judges, since these elections are just part of the general elections, and the electorate is usually ill informed. In Washington State in 2006, many good judges were unseated in the primaries by unknowns proposed by special interest groups. David A. Nichols wrote a column suggesting that this travesty be prevented in future by switching to the less politically vulnerable method of governor appointment of one of a selection offered by a committee. Courts were never intended to decide public policy.
Former superior court judge Nichols wrote, “People cannot expect the courts to write the legislation they could not get their legislators to enact. To elect judicial candidates who patently support one agenda or another sets an extremely dangerous precedent.” (Nichols, David A, 2006)
So there really is no end-all and be-all way to put our judges to work, and to insure their independence, but it seems that appointment is simply less corruptible, even though it depends upon one person or committee. Elections which involve the need for fundraising are certainly too easily abusive of the public trust. However, this is just one more “right” that the electorate is loather to let go. Elections are also very expensive and getting to be more-so all the time. Perhaps a comprehensive plan to use the saved money for the benefit of the electorate might sweeten the pot. Appointing judges is not without its dangers, so care must be taken to hold judges accountable for their actions however they get their jobs.
References
CATO Institute, 2001, in Frontline, Justice for Sale. Web.
Goodman, Michael J. and Rempel, William C., 2006, Los Angeles Times. Web.
Nichols, David A, 2006, Seattle PI,com, Appoint judges to protect system from political interests. Web.
Pro, Philip S. 2008, in Judging the Judges, Justice & Democracy Forum Series.
UNLV Center for Democratic Culture, William S. Boyd School of Law, Evaluating Judicial Talent: Surveying, Ranking, and Promoting Judges. Web.
Ritter, John A. 2008, Who Will Choose the Judges, John A. Ritter.com. Web.
THE VIRGINIAN-PILOT, 1996, Landmark Communications, Inc., PAGE: B4, EDITION: NORTH CAROLINA, SOURCE: ASSOCIATED PRESS. Web.
Whaley, Sean 2006, Las Vegas Review-Journal. Web.