Are Alabamans Too Stupid to Choose Their Judges?
January 17, 2012
This seems to be the line Justice at Stake is peddling, calling judicial elections “an exercise in blindfolded democracy” and arguing that elections basically amount to “pulling names out of a hat.” The Birmingham News has dutifully picked up on the idea and proposes doing away with elections altogether and “have judges at all levels appointed in a fair process that considers qualifications and legal experience most of all.”
Two comments seem relevant here. First, as former Michigan Supreme Court Chief Justice Clifford Taylor has tirelessly pointed out, the idea that under “merit” selection, nominating commissioners sit around poring over law school transcripts in search of the judicial candidate who got an A+ in Contracts rather than an A- is grossly misleading at best and an outright falsehood at worst. Imagine a commission evaluating the qualifications of Antonin Scalia and Stephen Breyer. For all intents and purposes, their qualifications are identical. So when choosing between a Scalia and a Breyer, the decision for President Reagan and President Clinton came down not to qualifications, but to which judicial philosophy each felt best serves the Constitution. Judicial Nominating Commissions make their recommendations based on the same biases and preferences – only they are not accountable to anyone for their decisions.
The second point is that doing away with elections because a handful of elites believe ordinary citizens are not educated enough about their choices puts us on a very slippery, anti-democratic slope. Should we end voting for school board because we don’t think people really “understand” what it takes to run a school effectively? What does the average person know about the latest academic research on law enforcement – and how can they vote intelligently for their local sheriffs without it? Alabama had a long and undistinguished history of using “literacy tests” to make sure people were “qualified” before they were allowed to vote. Is that really a legacy the “merit” selection crowd wants to embrace?
In American democracy, the right to vote for our public servants is not a privilege granted to those deemed worthy by some editorial writer or some Bar Association honcho or some flak for a billionaire who wants to push our courts sharply to the left. And it’s not conditional on the reason we choose to vote for a certain candidate – or whether elites thinks it’s a good reason or a bad one.