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May 15, 2010

"Hey, is that an elected county judge in your pocket?"

Mae West.jpg

"Or are you just hugely happy to see me?"

Even when popularly-elected judges are "good"--and, to be fair, there are some great ones--state systems that support those regimes will never inspire much confidence. Each of those jurists is steeped a taint.

Think of it like this: Good Crops, Motherhood, the Flag, Andy Griffith, puppies, selflessness, courage (Mae West, above, had lots of it), beauty, truth, a thin Marie Osmond, Sweetness and Light, and replacing state judicial elections with merit-based selection in 39 American states. These are among the enduring and good things in life.

Lest anyone worry that writers at this site are developing tolerance for enduring but dumb ideas on hearing and deciding disputes, we will reach out and try here to be frank, forthright, and clear.

The popular election of state judges is beneath: (a) you, (b) your law firm, (c) your family's dog, and (d) especially your clients, and especially if you act for businesses who trade nationally or globally. That institution, favored in a vast majority of states in some form, makes the 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.

Certainly, we are not prejudiced. Three or four of our friends are retired elected state judges. 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, our cook Opal, or Opal's brother Roman, the gardener, very briefly dated or had a short meaningless affair with one, maybe.

But elected benches are by nature glaringly "fishy" (i.e., "...Hey and dang, Earl, the campaign money to the judge those guys gave last year...just don't seem right...") to even the most casual observer in the Midwest or South, and wherever else American horse sense abounds.

Merit-based selection 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.

It's time for the States to grow up, and adopt systems of merit-based appointment....

So quick and dirty re: elected state judges and campaign money.

Since 1996, persistently, and for nine years before we started this blog, Hull McGuire has written about this issue. More recently, we've followed and written a lot on 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 that closely-watched case, see slip opinion in Caperton v. Massey Coal Company (June 8, 2009), the Court ruled last year 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.

So the popular election of state judges--permitted in some aspect in a clear majority of the states--gives the appearance of justice being "for sale." Elected judges can be especially "bad" for good clients who do business all over the U.S. and the world. Even when elected judges are "good"--and, to be fair, there are some great ones--state systems of popularly-elected judiciary will never inspire much confidence.

Popularly elected jurists who hear and decide business disputes are steeped in a taint.

The point: 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. Merit selection is not perfect--and also poses risks--but it is far better than what most American states currently have in place. It's time for American states to grow up. See our many past posts over the last four years on this subject in our category on the right side of this site: Federal Courts.

*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.

Posted by JD Hull at May 15, 2010 12:47 AM

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