The selection of judges is one of the flash points of democracy. We want a stable, independent, well-qualified judiciary that is reflective of the community will but not controlled by public clamor and contention. Judges need the courage and security to be unpopular when the law requires it.

We don't want judges to be political appointees expected to do the bidding of power brokers who put them in office. We don't want judges elected by voters who have no knowledge of their competence or temperament and elect and re-elect them blindly because their names are vaguely familiar.

How many people actually know anything about the judicial candidates when they vote? Precious few.

Currently, many judges reach the bench by political appointment and then are retained by an uninformed electorate. This sometimes produces good judges and sometimes produces the worst of both methods. Frankly, we don't want politically appointed judges or blindly elected judges. But we must have either or some blended form of both. Perhaps what we need is a process that will give us better candidates for either appointment or election.

Eighteen years of service as a judge, first appointed, then elected, have given me some insight into the job. I have observed excellent judges and miserable judges. I have observed politicians who have used election as a judge as a step in their careers without any commitment to the judiciary or understanding of the special demands it requires. These profiteers use name recognition as a manipulative tool to stay in office, and the ignorance of the electorate makes it both possible and profitable.

The courts are increasingly becoming populated with judges who were former legislators or elected officials and who retire onto the bench or are biding time before going back into the political arena.

Can we weed out the uncommitted and unsuitable to increase the chances that the capable and competent can get the job? We can try. Here's the problem and a suggested solution.

Public service as a judge requires a different way to understand and use the law. Lawyers are trained as advocates. They are to advance the interest of their client and seek to "win" against a clearly defined adversary or, alternatively, to find a way to use the law to benefit their client in achieving a result.

Judges don't do that. Judges don't advocate a position or seek to advance an agenda — at least they are not supposed to do that. Impartiality, neutrality and disinterest are the touchstones for the ideal judge. Judges are to balance, weigh and seek precedent for consistency and the fair application of laws and legal principles. The outcome is not the purpose — the process is.

But this ideal is being smothered by the roar of judicial advocacy. The judge as advocate is cheered by the interest groups that contribute campaign money. The judge as political team player is cheered by the political parties who are not content to use just legislative tools to achieve their goals. The judge as agent of vengeance is cheered by the fearful and the superior. Who cheers the impartial judge dedicated to public service and excellence in judicial performance?

When just any lawyer can be appointed or elected to the bench, there is no way to screen out the opportunist or the incompetent especially if such an individual serves the interests of the powers that be.

What if just any lawyer cannot be appointed or elected? Suppose only a small pool of specially trained, experienced and temperamentally suitable people can be deemed qualified for the judiciary? These individuals must demonstrate a commitment to public service early in their legal careers and be diligent in pursuing the rigorous qualifications necessary.

We should require special legal training in the skills of judging. Course work to learn competence in applying legal principles, writing opinions and conducting fair hearings should be offered in post-graduate work for lawyers who want to make the judiciary their career.

An examination should be conducted to pass the "judicial bar." Character and fitness should be carefully examined to help guide those who may not be suited to the work required.

Once qualified with judicial education, candidates should be given positions as magistrates, hearing officers and mediators to develop the skills that only experience can teach. These judges-in-training can be observed and tutored by others who can mentor them and help develop the qualities that make excellence achievable.

Then these trained and seasoned individuals will be the only ones qualified for appointment or election to the bench. Individuals may choose to undertake this training after several years of practicing law or upon graduation from law school. They will self-select with no barriers of race, creed or gender. It will no longer be possible for the jack-of-all-political-trades to be a judge. Or for the experienced lawyer with the right connections and "good" name to retire onto the bench.

Whether these qualified individuals are ultimately appointed or elected, the public should have greater confidence that the independence and integrity of the judiciary has not been compromised in the selection process. Commitment and merit should be the prerequisites for the title of "Honorable Judge."

Source Article


Add comment


Security code
Refresh