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Why are we still electing judges?

Orrin J. H. Johnson
Orrin J. H. Johnson
Opinion
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Photo of the top front of the building with the words Supreme Court of Nevada

Our campaign season is already well and raucously underway. Pundits are excited, political strategists and campaign managers will make bank (in spite of most of them being guaranteed to lose most of their races), blind partisans have their Hitler comparisons ready and normal people are hunkering down and preparing simply to endure the inanity with noses held. Ah, representative democracy – the worst form of government ever invented, except for all the others… And the funny thing is that we don’t even have any official candidates yet – the filing period won’t open until March!

Well, that’s not quite true. One set of candidates has already filed. You’ve never heard of most of them, and when it comes time to cast your votes, you will know almost nothing about how they will act while in office. They are your judicial candidates, who have a separate, earlier filing period, running to be Justices of the Peace, District Court Judges and Supreme Court Justices.

The Supreme Court in particular will have significant impact on public policy and our legal landscape. There are currently eight candidates running for three seats, and only a tiny fraction of the voters who select them will have any clue what they’re doing when their vote is cast.

Why would we do this to ourselves when there are better ways to pick judges?

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We all groan about the banality of campaign ads and the broken-almost-before-they’re-made promises of politicians running for office. But truly, I wouldn’t have it any other way. North Korea doesn’t have to deal with campaign signs littering the landscape, and they always have nearly 100 percent voter turnout, but I’m not looking to trade systems any time soon.

But judges are different. Judicial candidates cannot tell you which policies they prefer, and it shouldn’t matter if they did. They will not – and should not – prejudge cases or the parties bringing or defending them. All a judicial candidate will tell you is how “fair” he or she will be, and everything else is guesswork to most voters. At most, a would-be-judge can tell you if they’re willing to ignore the laws as they are written and passed (that’s what the code phrase “living constitution” actually means), or if they will be faithful to the law and to their own constitutional limits.

Even that tells little of the story, though. The qualities that make a good judge – writing skills, legal acumen, an even temperament, the ability to listen, the right balance of humility and decisiveness – are not ones that can be easily tested or judged by voters in a political campaign. Even lawyers who practice in court every day are at a loss if judicial candidates come from outside of their jurisdictions. I am one of those lawyers, and of the eight candidates for the Supreme Court, all but two are total mysteries to me. Judicial races are almost always purely won or lost on name recognition alone, and fame alone hardly demonstrates good judgment or wisdom.

And even if we could properly vet them as an electorate, should we? Right now, judges have to go raise money or seek endorsements, often from other lawyers who will have cases to appear before them, or shady political activists who falsely claim to speak for entire groups of voters. They must go campaign, and to some degree, be prepared to bend themselves to popular will if they want to keep their jobs.

Alexander Hamilton foresaw this problem 230 years ago, when he wrote in Federalist 78 about the importance of the independence of the judiciary. He recognized the still-relevant danger of “the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” He knew that if judges were elected by popular vote, “there would be too great a disposition to consult popularity” rather than uphold the fundamental rights of individuals who may find themselves in a minority.

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Hamilton was right, and it is good and well that his ideas on judicial independence live on in our federal Constitution. There have been attempts to move to an appointment system here, most recently in 2010, which all have failed, but by this time next year, I believe people may have an appetite to rethink that decision. Appointments made by politicians, of course, are never completely divorced from politics, but those drawbacks don’t justify tens of thousands of people functionally voting in the blind.

Nevada already has a judicial appointment process, when there is a retirement or death prior to a scheduled election. Many of our judges start their careers that way in any event. For district court judges, the process is rigorous, and public. Applicants must submit a lengthy and detailed questionnaire and provide samples of their writing, which are posted online for public examination and kept there for three years. Then they must submit to a rigorous interview with a standing committee, chaired by a sitting Supreme Court Justice, that is open to the public. Public comment is invited during these interviews, and indeed by the end of the process the public will know far more about applicants for an appointment than they ever would about a candidate running for the same position. I can personally attest that this process helps keep out the riff raff.

Many states which have moved to appointment systems still have retention elections, where the electorate can functionally fire a judge, maintaining some level of public accountability while still preserving judicial independence. The 2010 ballot question in Nevada had this feature.

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The mere act of casting a vote does not ensure good government or public accountability. Voting for candidates you cannot vet and will likely never have the opportunity to evaluate while in office does nothing to keep this unique type of public official accountable, and indeed risks the opposite effect. It’s time to again rethink how we select our judges in Nevada.

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]

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