More From Kansas
October 21, 2008
As Election Day approaches in Kansas, legal elites are lining up in opposition to a ballot initiative that would restore democratic judicial elections in bellwether Johnson County. In today’s Kansas City Star, president of the Kansas City Metropolitan Bar Association Gregory Bentz urges voters to maintain the current “merit” selection system – where a committee of 14, including seven lawyers, meets to review candidates and develop a list of three nominees from whom the governor must choose.
As you’d expect, Mr. Bentz makes his case forcefully, and there is much to agree with in his analysis. Mr. Bentz wants judges who “decide individual cases based on the facts and the law, not which political party is currently in power,” and who in their right mind could disagree? Everyone wants (or should want) judges to be fair and nonpartisan in their application of the law. Yet Mr. Bentz offers no evidence why ordinary voters are not qualified to make the decision which judge is best able to meet that standard.
He leads off by grimly warning that if democratic judicial elections are restored, judges will no longer be chosen “based on merit, qualifications and experience.” Exactly what standard does he believe his fellow Kansas citizens will use if the power to select judges is restored to them? If we can trust voters to pick legislators to make the law and governors to enforce the law, there’s no good reason why we can’t trust them to select judges to interpret the law.
Mr. Bentz flatly states Johnson County judges will not longer be able to be impartial if they have to “seek endorsements from special interest groups just to get elected.” Yet under “merit” selection, prospective judges must win the endorsement of a 14-member commission that is controlled by a single profession – or, to put it another way, by one special interest group: lawyers. Does anyone really believe that the opinions of the seven lawyers who by law must dominate the commission don’t carry more influence than the opinion of the one doctor, or the one business executive, or the one plumber?
In America, it is an article of our democratic faith that no profession has a monopoly of wisdom over who is qualified to serve in public office. For public positions that require specialized training – like the judiciary – voters typically pay attention to the opinions of those citizens who share the same expertise, which is why the endorsements of various bar associations often carry great weight in judicial elections. But the minute we carve out a special privilege for one profession in deciding who will occupy public offices, we’ve made those public officials servants of that profession, not the people.
Under “merit” selection, judges are accountable to the lawyer-dominated commission that put them in power, which is just another way of saying they are accountable to themselves, which is another way of saying they’re accountable to no one. Retention elections, which Mr. Bentz promotes as a way for voters to “express their outrage” over a bad judge, hardly provide the level of accountability voters desire. In Tennessee, for example, since “merit” selection was adopted, 145 out of 146 judges have been retained by voters – a margin of success that would make Hugo Chavez envious.
At the end of the day, we all want the type of judges Mr. Bentz wants: professional, fair, impartial, nonpartisan. I believe the people of Johnson County are just as capable – or even more capable – of discerning which judges have those qualifications as a committee controlled by lawyers. On November 4th we’ll find out if they believe it too.