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January 17, 2011

My American States: Dudes, Where's My Merit-Based Judge Selection?

Yes--it's the same basic article we always run. Get used to it.

Socially, we are pretty liberal on these folks. No really. Three or four of our firm's friends are elected state judges, or ex-state judges.

We still say hello to them in public--and once even had one to dinner. We would probably not object too terribly strongly if one of our sisters, brothers, sons or daughters very very briefly dated one, probably.

States: Can You Get Off Your Knees, Please? Look, maybe think of it like this: Good Crops, Motherhood, the Flag, Andy Griffith, puppies, selflessness, courage, Beauty, Truth, a thin Marie Osmond, a really good-looking Eleanor Roosevelt, Sweetness, Light, and replacing state judicial elections with merit-based selection in 39 American states.

Let's be clear. Popular election of state judges is beneath: (a) you, (b) your law firm, (c) your family's dog, and (d) your business clients, and especially if you act for businesses who trade nationally or globally. That institution, favored in a majority of states in some form, makes states that still conduct them appear insular and potentially unfair to both American litigants and to non-Americans and their businesses abroad.

With each election cycle campaign donations are driving up the costs. This is, of course, wasteful and inefficient. See "The New Politics of Judicial Elections in the Great Lakes States, 2000–2008" by Justice at Stake. More importantly, the very existence of state laws regulating campaign contributions to candidates running for judicial office send two unintended but lousy messages:

1. Judges, like mayors and congressmen, have "constituents".

2. Justice, like real estate or widgets, is "for sale".

We appreciate that many of the some 10,000 elected American judges were excellent lawyers, and that as jurists they do first-rate, honest, exemplary, and often inspiring work. We have indeed stayed loose and open-minded on this subject.

In fact, 3 or 4 of our firm's friends are elected state judges--or ex-state judges. (Hull even dated one for until she turned 35.) We are gracious. We say hello to them in public--and once even had one to dinner. We would probably not object too strongly if one of our sons or daughters very briefly dated one. But elected benches are by nature glaringly "fishy" to even the most casual observer and especially, it seems to us, in the Midwest and South, and wherever else American Horse Sense abounds.

Merit-based selection, of course, is not perfect. However, it has worked very well for two centuries in American federal courts with a minimum of bad appointments and embarrassments--even if you adjust for the fact that state judges outnumber federal judges (who are appointed for life) by a factor of over 10 to 1. Last year, we followed the U.S. Supreme Court case about a popularly elected state supreme court judge, and campaign money recipient, who failed to disqualify himself in arguably suspect circumstances. In Caperton v. Massey Coal Company (June 8, 2009), the Supreme Court ruled that a West Virginia judge should indeed have disqualified himself from hearing an appeal of a $50 million jury verdict against an a coal company because its CEO had been a major campaign donor.

Judges should not have "constituents"--i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up. Generally county-based, American litigation at a state level is already frustratingly local and provincial for "outsider defendants"--businesses from other U.S. states and other nations sued in local state courts--who cannot remove to federal courts, the forums where federal judges can and should protect them from local prejudice.* American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. It's time for the States to grow up, and adopt systems of merit-based appointment.

*One reason that federal diversity jurisdiction was created in the first place was because of the Framers’ concern that prejudices of state judges toward out-of-state persons would unfairly affect outcomes in trial courts. Erwin Griswold, Law and Lawyers in the United States, 65 (Cambridge, Harv. Press 1964). Over 200 years later, our current systems in the states make that local prejudice almost inevitable. See also, the interview of General Electric's Mike McIlwrath in July 2009 of Prof. Geoffrey Hazard of Hastings Law School, who addresses why European business really fear U.S. state courts.

(from past posts)

Posted by Holden Oliver (Kitzbühel Desk) at January 17, 2011 12:36 AM


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