Monday, August 01, 2005

Consent of the Governed

Ann Althouse compares hers and Glenn Reynolds reviews of the book Electing Justice: Fixing The Supreme Court Nomination Process., and both react negatively to the idea of electing judges.

The idea of electing judges is not so outrageous as some have suggested. Most states have some form of election for judges - retention, non-partisan, or partisan. California, for instance, has retention elections, and went for more than half a century without turning out any statewide judges. So the idea that any form of election will authomatically disrupt the judiciary is specious.

Texas, in contrast, has partisan elections. Despite that, the Texas judiciary was extremely stable from the adoption of partisan elections in 1876 until 25 years ago, when Texas plaintiffs' lawyers decided to run candidates in the Democratic primary in order to shift the direction of Texas law. In response, insurance companies and defense lawyers joined forces with a then little-named political consultant named Karl Rove to put judges less friendly to plaintiffs' lawyers on the bench. 60 Minutes ran an aggressive expose of the plaintiffs' lawyers-Democratic judges connection, and Republicans began a decade-long march to dominance of the Texas bench.

Electing judges forces judges to defend their decisions, either directly or (in some states) by proxy. And part of the process of defending their seats (or seeking to take seats) is about qualifications, in addition to legal and political ideology. In essence, electing judges ensures that the consent of the governed is required for judicial lawmaking, as well as for the legislative kind.

In a world in which judges did not legislate, such a check on their power would not be necessary. As experience has shown, judges do legislate. They claim to do so under the guise of interpretation, but no serious scholar will claim that judges never make it up on the fly (e.g., Dred Scott v. Sandford).

I have worked on Texas Supreme Court campaigns and for the Court. In my experience, the candidates are civil, the discourse is generally conducted at a high level, and a significant number of the voters are well informed. And the results are generally pretty good, both in the quality of the judges and the quality of the jurisprudence.

Periodic retention elections, like California's, will allow voters to reject manifestly unqualified or extreme candidates. It may be conceiveable that Presidents and Senates might place such candidates in the lifetime sinecures of the Court. In the event such a person were placed on the Court, it would be advantageous to have an opportunity to remove him (or her).