The Case for an Elected Judiciary

From time to time you hear much moaning about how election of judges somehow introduces “politics” and “money” into the pristine world of the judiciary.  It’s an “attack on the independence” of the judges, we’re told.  It corrupts the process, we’re told.

I don’t think you can deny that election of judges introduces a political element into that branch of government.  Of course it does.  On the other hand, the appointment of judges is also highly politicized, and anyone who doesn’t think that happens is a drooling imbecile who does not deserve to be taken seriously.

Here in my own humble federal district we have two egregious examples.  One of our U.S. district court judges is married to a fellow who just happened to be one of the chief fund-raisers for a very prominent politician from around here.  A national, and even to some extent, world-wide prominent politician.  The fellow’s wife, who did not and does not enjoy any particular reputation for brilliance either as a lawyer or judge, somehow got herself on the local bankruptcy court bench (where the debtors’ lawyers found her to be dumb even by that court’s standards), and then equally magically fleeted up to the district court bench.  Where she will be until she drops dead or gets tired of it.  Another lawyer around here is a big union lawyer (that’s hard to do in a right-to-work state where unions have never been strong and are even weaker now); his firm even has the little union “bug” at the foot of its stationery.  His wife, whose practice revolved heavily around leveraging local political connections and who is equally undistinguished otherwise, is now on the federal appellate court for our circuit.  To pretend that either of those individuals got where they are by any means other than pure money politics is insulting to the listener.

Well, if both methods are riven with politics and money, what is the material point of distinction (if any)?  I’ll suggest the point of distinction lies in the answer to who makes up their constituency.  Is it the voters of the state at large, or is it a coterie of political insiders, mutually assisting each other to prominence through government connections?  I know which I prefer.  If a judge is going to have to suck up to someone to get his job, I’d just as leave that someone be me.

Can we agree that both election and appointment are, except in the single respect outlined above, indistinguishable on the issue of the role played by politics and money?  So how about garden-variety competence?  I pay attention to what happens in the court systems, both federal and state around here.  It’s sort of my job.  For the life of me I cannot tell that either method of selection is better about putting highly competent, highly ethical, and highly . . . judicial (for want of a better adjective) candidates on the bench.  Neither seems to do very well at picking all-stars or avoiding idiots.  Neither seems to do very well at picking judges who will not play favorites, or home-cook, or interject their personal politics into their decisions.  Neither does a very good job at identifying and avoiding those susceptible to black-robe fever.  In fact, the only argument in favor of either method of selection is that short of drawing lots for compulsory judicial service, no method conceivable and practicable would be any better at those things than the two we’ve got.

Does that leave us with anything to choose between the two?  I suggest we do have such a point on which to base a decision.  Which of the two methods makes it easier to get rid of the objectionable judges?  I think popular election to be the hands-down winner there.  Granted, it’s not easy.  Very, very few judicial recalls succeed, at least at the appellate level.

Rose Byrd out in California took it in the shorts a number of years ago, for her habitually far-left decisions.  Penny White in Tennessee paid the price for an outrageous capital punishment decision, when that supreme court ruled that, as a matter of law, an escaped felon’s raping a 70+ year-old virgin, stabbing her, and leaving her to bleed to death on the rear floor of her own car was not sufficiently “heinous, atrocious, and cruel” (as I think the relevant statute provided) as to support a death penalty.  As a matter of law, and bugger what twelve jurymen who’d heard all the proof, seen all the witnesses, and then unanimously decided otherwise had to say.  A couple of years ago a group of judges in either Kansas or Nebraska got run out of town, but just this month three supreme court judges in (once again) Tennessee survived a very well-financed effort to show them the door.

Un-election of trial-level judges is not always that difficult, but you still have to find a lawyer who’s willing to run and willing to deal with the fall-out of an unsuccessful effort.  Any candidate who’s willing to challenge an incumbent has to ask himself how well his practice is likely to do if he makes an enemy of the fellow he made actually run.  And if the incumbent is also tight with the other judges on that court, you have to ask what will that do to a lawyer’s livelihood if suddenly everyone in town knows that whenever a decision on any particular point could go one way or the other, that particular lawyer will never see one go his way.  The result of course is that you very seldom see a challenge made to an incumbent unless he’s commonly despised by both the bar and his colleagues.  While not a fool-proof standard, most judges don’t receive that degree of contempt unless they’ve well earned it.

Appointment, on the other hand, and especially lifetime appointment, produces statements like this, from a sitting U.S. Supreme Court justice:  According to Justice Ginsburg the “turmoil” in Ferguson, Missouri indicates that there is “a real racial problem” in America.  And the court is doing “little to help.”  This, by the way, from someone whose exposure to the lives and problems of ordinary Americans is likely limited to something asymptotically approaching zero.  She’s got no more clue as to how people in Ferguson (or in 99.9998% of other American towns, for that matter) live than she does of how Marines survive in modern combat.  So we can agree that she’s comfortable running her mouth about things that are closed books to her.

Where her comments really suggest that she could do with a contested election is her statement to the effect that once upon a time, the philosopher-kings of the Supreme Court were “leader[s] in rooting out discrimination,” citing specifically one of the worst-reasoned cases in recent decades, the Duke Power case, as what once was and should still be the court’s approach to “rooting out” things it doesn’t like.  Duke Power formally accepted the proposition that actionable discrimination can exist where a facially-neutral rule (such as, we have to assume in Ginsburg-land, “Do not beat police officers so badly you fracture their skull and they have to go to a hospital”) has a “disparate impact” on an identifiable group which you happen to favor, because their volitional behavior under or in response to that rule produces results that are distasteful to them, or as the ABA cheerleaders characterize the approach, “to evaluate polices that are neutral on their face but have a disproportionate impact on minorities.”

Notice, by the way, how the concept of “minorities” is divorced from the concept of “behavior” and “choices made.”  Here, let’s try another policy that is “neutral on its face” but that has a measurable “disproportionate impact” on “minorities”:  the rule that only licensed attorneys are eligible for most judicial office.  Obviously that policy is going to preclude the overwhelming majority of the “minorities” that are presently in favor with  the extreme-leftists of the ABA from holding judicial office.  For instance, a terrifying proportion of black males are convicted felons by the time they hit age 35 (if they live that long).  You can, and people do, honestly debate the policy of the statutes under which they are most frequently convicted (read: “war on drugs”), but unless something changes, those statutes are in fact the law and conviction of their violation in fact does establish you as a convicted felon.  Period.  And in pretty most states, convicted felons are for all practical purposes ineligible for admission to the bar, even if they pass through law school walking on water and parting it for those who can’t.  The alleged policy of restricting judicial office to lawyers is that supposedly only lawyers can be trusted not to bugger up decisions that impact people’s lives and fortunes.  I might accept that, except that for generations that was not the law and I’m not aware that the quality of jurisprudence back then was identifiably worse than it is now.  Further, a felon can lose his law license by reason of his conviction.  He’s not a lawyer any more, but you can’t show that his having been convicted has made him a damned bit less learned in the law.  Alternatively, you can know a boat-load about the law without ever holding a law license.  Case in point:  Herb Wechsler, one of the most respected constitutional scholars of the last half-century (he taught at Columbia) was not a lawyer.  Further, unless you’re willing to accept the proposition that all lawyers are equally qualified to be judges <sound of snot bubble blowing and bursting>, then you cannot allege that merely holding a law license qualifies you for judicial office.  Oh, but the Deep Thinkers will respond, that’s why you restrict the selection process to responsible political leaders, who will vet nominees and who will hold exhaustive confirmation hearings to ensure that Only the Best Need Apply.  Remind me again how holding a law license enables that process to work as designed?  Is a legislative panel unable to tell a numb-skull when presented with one unless he holds a law license?  Does holding a law license somehow make your character more transparent, so that an Alcee Hastings will sit revealed as a criminal when he comes before a senate judiciary committee (answer: no)?

In short, you’ve got a rule that has absolutely no verifiable relationship with the ill which it is supposed to avert, and yet which automatically excludes millions of Americans from holding judicial office.  So why then is it not unconstitutional, on a disparate-impact test, to require a law license for a judge?

I admit the lawyers-only rule is an extreme example.  Let’s look at something more prosaic:  school disciplinary rules.  The United States Department of Education now formally takes the position that even if neutral rules of discipline are administered absolutely, perfectly impartially, if members of a favored group get disciplined under them more frequently, that in and of itself can establish discrimination under the “disparate impact test.”  Let’s go to the money quotation:  “Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race. The resulting discriminatory effect is commonly referred to as ‘disparate impact.'”  Lest Gentle Reader think I’m cherry-picking an upper-level summary and quoting it out of context:  “Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense – such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform[.]”

Thus, even if a black child who takes a baseball bat to a school locker is neither more nor less likely to be punished, and at an indistinguishable level of severity, than the child of Korean immigrants who similarly amuses himself, if just by the numbers more black children are punished under that rule because more black children engage in that behavior, then the rule is constitutionally suspect.

Justice Ginsburg thinks this is a swell way to run a school.  I’ll kiss your ass under every red light in town if either her children or grand-children have ever had to try to learn geometry in a classroom run along those lines.

Oh but “disparate impact” is harmless, Gentle Reader might say.  I mean, c’mon — school rules?  Can’t you think of something weightier than school rules?  Show me something with some substance to it.  Show me something where tip-toeing around a minority because that’s what they do actually has caused someone some harm.  Show me, in short, a reason to think that fuzzy-headed thinking like Ginsburg’s actually poses a risk to ordinary people in ordinary circumstances.

By curious happenstance, I can.  There’s a city in England, Rotherham, of about 250,000 people.  Roughly 8% of its population is Pakastani (whom the politicians and newspapers insist on describing as “Asian,” as if they were indistinguishable in their habits from the folks living in Rotherham whose ancestors came from Hong Kong).  For 16 years now the police and the town council have been fully aware (in fact numerous written studies were commissioned and completed) that organized gangs of Pakistani males, ages 20-30, have been systematically preying on white girls as young as 11 and 12 years old, gang-raping them, whoring them out, and generally sexually exploiting them.  Books, in fact, have been written by survivors; they have been interviewed and those interviews published.  As long ago as 2007.  The minimum known number of victims is around 1,400, although the true number is likely to be well in excess of that.  One thousand four hundred.  One of the children referenced in one of the many official reports was having sex with up to five men . . . at age 12.  One of the perps was caught with a pre-teen victim, drunk in his car, and with naked pictures of her on his cell phone.  She was 12 at the time (she was already known to the police; they’d identified her at age 11 as having sex with adult males); he walked.

All this was known.  Known to the police.  Known to the child welfare agencies.  Known to the town council.  And not a damned one of them did anything.  Not.  One.  Goddam.  Thing.  Why not?  Well, let’s let the MP from Rotherham for 18 years tell it like it was:  “Denis MacShane, MP for Rotherham from 1994 to 2012, actually admitted to the BBC’s World At One that ‘there was a culture of not wanting to rock the multicultural community boat, if I may put it like that. Perhaps, yes, as a true Guardian reader and liberal Leftie, I suppose I didn’t want to raise that too hard.'”  But why Pakistani males and English girls?  Surely the Pakistani males could have had much easier access to their own girls, right?  “There are other hopeful signs. The Rotherham scandal seems temporarily to have silenced those who insist, every time a child-grooming case is exposed, that most paedophiles are white. Indeed they are; but the Rotherham abusers were not paedophiles. They were men of Pakistani heritage slaking their lust on young girls they regarded as white trash because they knew they could get away with it.”

Because they could get away with it, and knew they could get away with it.  Because the law was not enforced against them.  “Perhaps we should expect no more when community preservation is outsourced to bureaucracies, but the unavoidable reality is that on many occasions, Rotherham police came upon children being sexually exploited—in some cases, in the very instance of being raped—and arrested no one. The perpetrators are Pakistani; they might call us racists. The children seemed to consent. These gangs are violent.”

In short, because enforcement of the laws against gang-raping 11-year-olds might have had a “disparate impact” on a minority.  In Rotherham we see the logical conclusion of the philosophy that Justice Ginsburg thinks such a wonderful thing.

And this is why we need an elected judiciary.

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