07 August 2007

So, How Should We Select a Judge?

A while back, SW Va Law quoted a popularly elected judge saying that he makes judicial decisions not because they're right, but because they will get him re-elected.

Of course, that's disturbing. However, if we assume that this is a normal pattern of action we must assume it in any system wherein the judges are periodically reviewed. In Virginia we have our judges selected by the General Assembly. If a popularly elected person is affected by what the populous thinks, a judge chosen by the general assembly would be affected by those winds which blow from the legislature as well. I believe I saw this a few years back when a judge was having a terrible time getting re-appointed because he was viewed as being too lenient on DUI's. The judges were following that closely and, although it may have just been my impression, everybody tightened up. Was that the will of the people? I'm not so certain. I think the problem with judges appointed by the legislature will always be that legislative bodies are disproportionately influenced by lobbying groups and therefore pass on that disproportionate influence to the judges they choose and periodically re-affirm.

Perhaps the biggest flaw in the legislative appointment/re-appointment system is that it can cause judges who are entirely out of touch with the locality to become the judge. In Virginia, depending on what part of the Commonwealth is dominant at the moment, this can mean the rest of the Commonwealth imposing conservative judges on the People's Republic of Northern Virginia or Northern Virginia imposing liberal judges on us unheeled barbarians in the hinterlands.

So, what's the solution? I'm not certain there is one. Every system I've seen has flaws. Gubernatorial appointment and reappointment has almost exactly the same flaws as legislative appointments. Some are enamored with the retention system, but, in my view that system pretty much does away with any accountability. The only way the judge would ever be held "accountable" is if a big case is decided close enough to election time for press coverage to linger in the minds of the people. I'm also not particularly thrilled by the idea of committees choosing the candidates. These committees will be dominated by one group or another and reflect that group's view (pick a group: ABA members, or BigLaw types, or local bigwigs, etc.)

That all said, how do I think that judges should be chosen? Well, it's an imperfect, incomplete thought, but maybe something like this:

Supreme Court Justice: These should have life tenure to remove them as much as possible from political influence. A committee composed equally of members appointed by Bars which are non-general in nature (prosecutor bar, defense attorney bar, plaintiff's bar, insurance defense bar, etc. - only bars concerning a specific area of State law) and that committee will report 4 people to the General Assembly. The General Assembly reports one of these people to the governor who has the option of approving or denying him and then the General Assembly can override that with a 2/3 vote.

Appellate Court Judge: These should have a 10 year, renewable tenure. Nominations should be tied to a region of the Commonwealth. Initially, they would be offered by the governor and approved by the General Assembly. At time for re-appointment 2/3 of the General Assembly must vote to remove the judge from office.

Circuit Court: 10 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit. Selected initially by the Senate. At time for re-appointment the majority of the General Assembly may vote to remove from office.

General District Court: 6 years tenure. Nominations should be limited to attorneys with their primary place of practice in the circuit (in Virginia district court judges ride the same circuit as the circuit court judges). Initially selected by House of Delegates. At time for reappointment the majority of the General Assembly may vote to remove them from office.

I think this sort of system would balance the influences on the courts by various political entities. I also think it puts people in the appellate courts without too much fear for their jobs so that they can make decisions as a truly independent 3d branch.

Now, all I have to do is figure out how to get Virginia to let me single handedly rewrite the Commonwealth's constitution . . .

1 comment:

Robert said...

I think that the Supreme Court of Virginia fends for itself. I interned there two summers ago. Look at examples like Harry Carrico and the late A. Christian Compton (W&L classmate of my grandfather's); they opt for Senior Justice status so that they can serve on a limited scale of hearings and also serve in place of others who have scheduling conflicts. I am not sure that they cherry-pick their cases, either; I think that their cases are determined by interest and a collective decision by all of the justices.

I really have not seen the political aspirations come into fruition.

Robert J. Smith, III