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November 16, 2008

The popularly elected judiciary.

U.S. Supreme Court grants cert. in Harman Mining-Massey Energy state judge campaign contribution case; but it's not just a West Virginia thing. In the 1980s and 1990s, I frequently defended "Big Coal" (often on ERISA withdrawal liability matters), and for some fine West Virginia-based clients, which I admired and fought hard for. Unions were usually the plaintiffs. My firm was lucky to stay out of state courts in West Virginia and Pennsylvania, and always could work in federal courts, usually in D.C. where, frankly, the judges are better, and classier, than any court pocket I've practiced in. D.C. federal judges "get it", and the law is important to them. Even the D.C. Superior Court judges are appointed on the basis of merit--by the U.S. President--and that more local, "state-like" system works, too.

Sadly, elected state court judges--just acting like humans will eventually act in flawed and medieval systems--is a big topic here at What About Clients? Even good elected judges are bad for good clients. But few believe that American states will abolish any time soon judicial systems which popularly elect judges (a majority of states do this)--or even act a little embarrassed every now and then about this widespread practice. Optimistic WAC? is pessimistic about abolishing elected-judges systems. But there is hope. See at Bloomberg Judicial Campaign Contributions Get U.S. Supreme Court Hearing. Excerpt: "The Supreme Court has never found that the Constitution's due process clause requires recusal because of the appearance created by a judge's campaign contributions."


Popular election of state court judges is perhaps the legacy of tribal and agricultural systems where some guy in the village gets elected to hear and decide, or otherwise resolve, a very local and petty dispute or fistfight over rights to a horse, grazing land, food supply, woman or a dog. In a post-industrial, cross-border and complex society, it is no longer needed.

Posted by JD Hull at November 16, 2008 09:06 PM



As usual, your comments are interesting and thought-provoking.

Having practiced in federal and state courts for many years, and having been fortunate enough to practice (pro hac vice) in other jurisdictions, I agree that federal judges tend to be better in trying to apply the law. That said, I have often commented how many decent (and some very good) state court judges there are, particularly given the case load they carry, often without the support accorded a federal judge.

As to the system of electing state court judges, I agree that it raises great concerns. However, I doubt it is going to change in our lifetime.

At the same time, I also think there are severe flaws in the federal system. If one were to design a system that would encourage the appointment of hard-working and thoughtful judges who strive to apply the law, and who are responsive to those who appear before them, appointment for life (in essence) through a political process by the party in power would not come to mind (at least to my mind). This is especially true given the incredible power excercised by federal judges.

One interesting approach would be as follows: (1) establishing some basic qualifications (beyond simply having a law degree and a law license), such as academic qualifications, some minimal level of experience, etc.; (2) having a bi-partisan commission (primarily of experienced lawyers) make "short lists" of qualified candidates; (3) having the chief executive make an appointment from those lists; and (4) after a certain minimum period, requiring each judge to stand for an up or down vote in a general election. Alternatives would be an up or down vote in the legislature or by the commission.

This approach would tend to minimize politics, but but would still make judges accountable and tend to eliminate the "appointed for life" issues. I would like to see it adopted at both the federal and state level.

Of course anything like this is probably not politically feasible, but it is interesting to look at possibilities.

Now, if we could only have specialized courts ....

Posted by: John Watkins at November 16, 2008 12:44 PM

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