What About Paris?™

Dan:

I agree, in general, with most of your sentiments on this subject. Nevertheless, I share your sense of optimism and frustration.

My optimism is from the fact that there are a lot of good judges out there, both at the federal and state level, and there are also a lot of good people who would like to be a judge at either level.

What is a good judge? To me, it's pretty simple: (1) someone who treats counsel and litigants with a measure of respect (but controls the court); (2) someone who tries to apply the law fairly to both sides (not affected by outside influences); and (3) someone who will rule and not sit on a case or a motion forever. This last point can be a real problem, and it never hesitates to amaze me how many people have gotten themselves elected or appointed as a judge, but who just do not want to decide anything!

My frustration is that any existing system we use (at either the state or federal level) has some obvious problems. Judicial elections raise some obvious concerns (the possible influence of money; are the voters really qualified to decide who should be a judge?), but at least carry with it the possibility of voting out someone who is really bad.

Many think the federal system of appointment, essentially for life, is a a good alternative. However, if anyone would dispute that any appointment to the federal bench is less than intensely political, I would argue they are intensely naive. And although federal judges may occasionally get removed for criminal misconduct, they never get removed simply because they are not very good at their job.

I would like to see some sort of a compromise: Perhaps an appointment by the executive from a group chosen by a bipartisan committee of experienced lawyers. Let's not forget that many lawyers are intensely political, and most are somewhat political, even if they do not admit it. That is why the committee needs to be bipartisan instead of pretending to be nonpartisan. And then either term limits (shouldn't fourteen years be enough?) or the opportunity to give someone an up or down vote after a certain period (maybe four to six years), or perhaps both.

I know it would requires a constitutional amendment at the federal level, and probably in many states, but, hey, a guy can dream, can't he?

John: You're right about some things. Sure, the cure here could be worse than the illness.

In the merit selection bias I and others have, we forget that not every federal judge is Jerome Frank or Pierre Leval.

And one big problem: what if insular state government committees doing merit selections started turning out "worse" judges than elections do? Sure, it could happen.

Still, I think federal judges--there are only about 870 of them, and less than 700 district (trial) judges--are by and large better and safer for business clients. Will try harder to get the law right. A bit smarter, frankly. Also: there's NO reelection issue and NO campaign $ to play on their worst instincts and flaws.

But I would still take my chances with true merit-based selection at a state level than with any state election regimes. We have all become better than that. An elected judiciary is beneath Americans. In the meantime, let's get the great state jurists into the Bigs (help them get federal gigs). Rather have all the good eggs in that basket.

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