How to vote for judges

In a few weeks we’ll all be casting our ballots. The top of the ballot is pretty easy – those races get all the press, and most of us have picked our sides. The super local races get harder, even as our individual vote is worth far more. And then we get to the judicial races, where almost no one will be casting an informed vote.

Elections are dumb ways to pick judges. Unless you’re a lawyer who practices in front of a judge on a regular basis, chances are that you have very little insight into what kind of judge a candidate would ultimately make. But since we’re still doing it, and since judges are incredibly important public officials, how do you pick?

Even if you met a judge once or twice and they seemed really nice, you almost certainly cannot gauge their actual qualifications for the job. For example, do you know how well they write? Are they decisive? (The only thing worse than a judge who is consistently wrong is one who is wishy-washy.) Are they consistent and predictable, in that similarly situated people and cases are dealt with the same way every time? Are they familiar with the rules of evidence (it’s surprising how many judges aren’t)? Do they have the wisdom to know when to cut someone a break, and when to drop a hammer? They all say they’ll be fair and impartial, and most of them even mean it. But what does that mean in THEIR minds?

So before pulling the lever for a judge, here are some tips for picking the right person for the job.

Find something they’ve written

The popular image of a judge is an old man sitting on a bench pounding his gavel and sonorously pontificating upon his decision. But much of a judge’s heavy lifting happens in chambers. Most people don’t appreciate just how much judges actually have to write, and how critical those written orders are. Even if a judge’s orders don’t create any sort of binding precedent, a sloppily worded order can create chaos for individual parties, and sow uncertainty in other litigants who are trying to decide whether they can find justice in that courtroom. A good rule of thumb is that an educated non-lawyer should be able to follow the reasoning of the opinion, and come away understanding the issues presented.

If the candidate is already a judge, try to find an order they’ve written. This is not always easy, and without a Lexis account takes a little extra skill with the Google machine. If the candidate is a practicing lawyer, you may be able to find briefs or even articles they’ve written that will give you some clue as to how they communicate in writing. If nothing else, look at their websites.

Have they applied for a judicial appointment before?

Many judges start their judicial careers with an appointment between elections. The process is vigorous, and involves a written application so thorough that they go back to high school extra-curriculars. Chances are if someone has ambitions to become (or stay) a judge, he or she has applied for a judicial appointment in the past.

The applications are public, and archived for three years on the Judicial Selection Commission website. Applicants must provide a sample “order,” and wind up writing multiple essays which reflect back upon their careers. Supreme Court candidates Lidia Stiglich and Elissa Cadish both have applications still available there.

I actually think reviewing those applications is so valuable that I wish all judicial candidates running for public office were required to publish one during their campaign.

Who do they stand for?

I often see my friends on the left talk about the need for judges to “stand with the little guy” or some such nonsense. Any time you hear this, you’re listening to a person who has no idea what a judge does for a living, or what the rule of law is all about. A large corporation ought to be protected by the law just as “the little guy” is. If a judicial candidate promises to be “for” any particular demographic group, watch out — that person can likely never be counted upon to fairly apply the law. Sometimes “the little guy” is on the wrong side of the law, and a judge who would refuse to acknowledge this has no more business on the bench than one who thinks corporations or large government agencies are always run by saints.

Judges must stand for the law. As a prosecutor, I truly do not want a “pro prosecution” judge any more than I wanted a “pro defense” judge when I was a public defender – and neither do you.

What do they stand for?

Most judicial candidates try to keep their opinions to themselves, pretending not to have any on the issues of the day in an effort to look “impartial.” But let’s be real. Judges are ambitious lawyers — if you think there’s a single one that doesn’t have strong opinions on public policy, I have a bridge to sell you. And while I don’t want judges wading into political debates from the bench, a judicial candidate who has never engaged in his community with enough force to at least ruffle a few feathers is one without experience, courage, perspective or wisdom.

Supreme Court Candidate Judge Jerry Tao recently caused quite a stir when he essentially promised to be the conservative in his race. I was shocked when I saw it, but I must admit finding it somewhat refreshing. But Judge Tao needs to better define his terms.

For example, he indicates on his website that he supports “schools, school choice, [and] opportunity for all youth.” If he’s advocating for the policy of, say, funding Education Savings Accounts and charter schools, that’s a huge turn off to me (even though I’m all for funding ESAs and charter schools). But there’s nothing whatsoever wrong with him indicating that he believes that such a scheme is constitutional, at least on a theoretical basis. In fact, if we’re going to elect judges, we should be having exactly those debates.

One of his opponents, Judge Elissa Cadish, was famously blocked from an appointment to the federal bench because she had once opined in a survey that she did not believe the Second Amendment protected an individual right to bear arms (the survey was before the U.S. Supreme Court correctly decided in DC v. Heller that it indeed did). But that statement gives us a better understanding of how she would likely approach other civil rights and/or regulatory issues, and that’s a good thing.

By most accounts of lawyers I know and trust, both of those candidates are smart, capable jurists who handle individual cases fairly and impartially. Both may be dedicated to “following the law,” but may come to different conclusions about just what the law actually is. What will set them apart from one another and their other opponents are their respective legal philosophies, especially in cases where statutory language is not crystal clear. We have every right to know what those philosophies are prior to casting a vote, and we should encourage judicial candidates to explain to us how those philosophies might be applied to some of the bigger issues of the day. We should reward judicial candidates with the courage to tell us how they might approach such issues in broad terms, even if we might not necessarily agree with their reasoning. Again:  consistency and predictability are among the most critical traits to have in a judge, and voting for ciphers is not the path to predictability.

Again, I would prefer appointments. But we cannot pretend politics don’t exist whenever we cast votes, and if we must vote for judges, having more information about candidates’ thought processes is healthier than pretending they come to the job as totally blank slates.

One more caveat, though — perceived party or philosophical affiliation ought not be the basis for your vote. I’ve met phenomenal judges who lean left, and terrible ones who lean right (and vice versa, of course).

Ask your lawyer friends

Writing skills and legal acumen are great, but so much of what makes great judges is intangible, and can only be evaluated when you’ve practiced before, with, or against that person in a courtroom on a regular basis. “Temperament” is a judge’s most important quality, and the most difficult to quantify or even precisely define.

So for sitting judges, find a lawyer who practices in that department regularly. For lawyers running for judge, find someone who worked with that lawyer, preferably someone who has ever been on opposite sides of the courtroom. There is no better window into a lawyer’s integrity, professionalism or judgment than when you have a case against him or her.

When in doubt, don’t vote

With some due diligence, the current system can have its upsides (including reminding more and more people why appointing judges is a better way to pick them). But without that diligence, it’s better to skip the judicial votes all together — there is no shame in refusing to cast a vote that’s effectively a dice roll.

Disclosure: I have previously donated to Justice Stiglich’s re-election campaign.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at [email protected].