Give Me Pennsylvania Judges Over Iraqi Judges Any Day
July 19, 2010
Today’s Philadelphia Inquirer prints an op-ed by a law student arguing that Pennsylvania has a lot to learn from Iraq – yes, Iraq – when it comes to selecting judges.
In Pennsylvania, you see, judges are chosen by ordinary citizens in open, democratic elections. How backward and benighted!
Iraq, on the other hand, is blessed to have a judicial selection system created in large part, we’re told, by “U.S. State Department officials.” Under this system, an exalted “High Judicial Council” gets to “vet and appoint new judges.” Successful candidates must “graduate from the Judicial Institute in Baghdad.” After one year, judges are “subject to a comprehensive performance review” before securing lifetime appointments to the bench. Needless to say, the unwashed masses of Iraqi voters – those inspiring millions who lined up for hours with tears in their eyes as they cast their first-ever legitimate vote to decide who would rule them – are cut completely out of the picture. How progressive and modern!
Our Ben-Matlock-in-training points out that “when the Declaration of Independence was signed … no state had seriously contemplated popular judicial elections.” He’s right of course – back in 1776 there were no states. But when our nation’s governing framework was hammered out in our Constitution, the framers strongly believed that all public servants – including judges – must ultimately be accountable to the people. As James Madison put it in Federalist 39:
“It is essential to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
No mention by Madison of a “High Judicial Council” or the need to graduate from some special “Judicial Institute” or have a group of legal elites conduct a “comprehensive performance review” – and no calls for candidates to be screened by some privileged “merit” panel. They only “essential” requirement was that judges be either the direct or indirect choice of the people.
This is why 39 states, including Pennsylvania, elect at least some appellate or major trial court judges, according to “merit” selection proponent Justice at Stake. It’s also why Pennsylvania voters would be crazy to trade their democratic right to select judges for the Iraqi model – even if it was dreamed up by legal elites at the U.S. State Department.