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October 26, 2005

Are Federal Judges "Better" Than State Judges? Are They Better For for Clients?

Yes to both questions. Call me non-egalitarian, a Tory or an elitist but state court judges--trial or appellate--should never be popularly elected. Ever.

Like federal judges, state court judges in all 50 states should be selected based on merit. Currently, however, more than half of the states use some form of popular election to choose judges, although not all of those states elect all of their judges (i.e., some states only elect trial court judges which, to me, is still scary).

It is now nearly 2006. Technology has made the world commercially more compact. The slightest wrinkle renders a simple business project global. Legal matters for a business client--even a small upstart company--will take your firm's litigation practice to a number of different American states.

My firm has appeared on behalf of out-of-town businesses before some good state judges. But even in instances where the judge is good, it is "just wrong" for my client to have to appear before an elected official in a state court to which they have little or no local connection. Whether I have local counsel as a sidekick or not, our client and I are before jurists who may have received campaign money from our opponents.

Even if all elected judges were honest, judicial elections naturally erode public confidence because they imply that judges have "constituents" (i.e., the entities and lawyers who contribute to their campaigns) and that justice is political. It doesn't pass anyone's smell test. In a country with the best law schools in the world and with legions of truly talented lawyers, who believe that lawyering is a privilege and art, we can do better than that. And some day we will. See, for example, Pennsylvanians for Modern Courts.

In the meantime, whenever possible, our clients (and I) need to be before federal judges in federal courts. We are safer in them. True, national politics enter into the merit selection process of federal judges, and not all who win appointments are stellar. And some sitting federal judges never get that diversity jurisdiction was devised 218 years ago due to the belief that a federal judge would be both "better" and less likely than a state judge to be prejudiced toward a citizen of a different state. In the main, though, they are a talented lot--my firm is happy with them. Federal judges are smarter, fairer and better for clients in the new Information Age world.

Posted by JD Hull at October 26, 2005 12:31 PM

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