Judges Should Stick to the Law and Leave Selection Decisions to Voters

October 11, 2013

Ohio’s current judicial selection system, according to Chief Justice Maureen O’Connor, has produced “an exceptional bench of talented and hard-working judges administering justice competently and impartially.” That’s why she wants to change it.

O’Connor frets that voters might be choosing judges based on “superficial information like the candidate’s name.”  Even worse, they might try to choose a judge based on party affiliation.  The horror!

O’Connor poses a hypothetical about a citizen standing before a judge for a traffic ticket or divorce wondering whether the political affiliation is influencing the decision.  Perhaps she’s worried that Democrat judges are trying to figure out which party in a lawsuit is also a Democrat – and then adjusting their rulings accordingly.  “Should the judge’s political affiliation have anything at all to do with judging,” she asks?

Really, this is just a red herring.  No one actually believes that judges shape their rulings to benefit one party in a lawsuit over another based on their political affiliation.  Such a judge would be corrupt and would be removed from the bench.

Yet party affiliation can provide important clues about a judge’s judicial philosophy – information that is potentially valuable to voters.  The divide between activist liberal judges and strict construction conservative judges has been a hot debate across the country for decades. Voters deserve to know where judicial candidates come down on this spectrum, broadly speaking, and party affiliations provide a meaningful sign.

Party affiliations are already suppressed during general judicial elections, depriving voters of useful information. Justice O’Connor wants to remove them in primary elections as well, putting voters even further in the dark about the judges who serve them.

All of which raises another interesting question:  Isn’t it getting a little unseemly to see judges across the country engaging in political questions like how judges ought to be selected?  You never hear presidents ruminating about eliminating the electoral college or Senators pining for the days when they were chosen by their state legislatures, as they were for the first 125 years of our Republic.

The question of how we choose our public servants is properly left to the people.  Maybe it’s time for judges to stop kibitzing about the process by which they are selected and get back to the job they’ve been hired for:  interpreting the law, rather than making it.

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