Louisiana Goes On The Radar Screen
September 23, 2008
The Shreveport Times (LA), according to a recent editorial, has “soured on” judicial elections and is calling for adopting some variation of “merit” selection – where a small committee dominated by lawyers meets in secret to pick judges. A blogger at the Central La. Politics blog helpfully points out such a move would require amending Louisiana’s Constitution, meaning
“…the voters of this state would have to voluntarily relinquish their right to vote for judges.”
That’s a pretty big step to take just to wash the sour taste out of the mouths of the Shreveport Times’ editors. But instead of justifying such a momentous act, the editorial just rolls out the usual boilerplate in a series of deeply flawed arguments.
The paper starts off by complaining that judges in judicial elections consistently run unopposed, so that for judges “once elected, always elected.” But since “merit” selection was adopted in Tennessee, 146 judges have stood for retention election and 145 have been returned to office (see study here). While I’d prefer to see more competitive judicial races, at least elections preserve the possibility that voters can replace a bad judge. The “merit”/retention system virtually eliminates that opportunity.
The Shreveport Times also worries that “the public’s ability to oversee bench competency is limited.” Arguing that voters ought to give up their right to vote because they are too stupid to use it responsibly never struck me as a winning argument, but at least the editors are honest. As I’ve said before, if voters can be trusted to elect legislators who write laws and governors who enforce laws, there is no good reason they shouldn’t be trusted to elect judges who interpret laws.
The editorial goes on to argue that contributions to judicial candidates by lawyers might give the legal community undue influence in the courtroom. But the “merit” system the paper supports would trade that chance for the guarantee that lawyers and legal special interests would unduly influence Louisiana’s courts. The paper even suggests putting the “local bar association” in charge of “look[ing] only at lawyers with established minimum years of experience and assess[ing] their competency with expert eyes.” But in a democracy, it’s not up to “experts” to decide who will govern us, it’s up to the people.
The issue of campaign cash playing too big a role in judicial elections is real – but it’s an issue that applies to legislative and gubernatorial races as well. Besides, as Louisiana attorney John Maginnis points out in a piece on Bayou Buzz,
The real effect of campaign contributions is to help elect candidates who share views with contributors rather than to cause a justice, once elected to a ten-year term, to reshape his or her judicial philosophy on a case-by-case basis in order to follow the money.
As far as the “merit” system reducing “the influence of politics” in judicial selection, take a look at my post yesterday where a Minnesota judge details the insider games that take place behind closed doors with judicial nominating commissions. Or this post, where a Tennessee judge talks about the politicized process for picking judges under that state’s “merit” system.
“Merit” selection hasn’t won much support in Louisiana – but we’re still keeping the state on our radar screen.