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October 24, 2014

Popular elections of American state judges is wasteful, anti-business, provincial, third-rate and a global joke.

On Tuesday, November 4, Americans will vote in mid-term federal elections for all House seats and one-third of the U.S. Senate seats. Moreover, except in Louisiana (with its general election in early December), voters in each state will vote on November 4 for candidates for office in a extraordinarily wide variety of state, county, municipal and local elections. Unfortunately, voters in 37 (Louisiana, again) of the 38 states that popularly elect judges will also participate on November 4 in those contests. Popular elections to select our state judges, we believe, is a wankfest of the first order.

Anyone who has read my or my firm's writings in various Midwestern-based papers and legal periodicals over the past 20 years, or has read this blog since Tom Welshonce, Holden Oliver and I started it nine years ago, knows that Hull McGuire prefers whenever possible to do its business litigation in federal courts, where judges are appointed on the basis of merit, and regards state courts as unpredictable and often dysfunctional venues to be avoided. Regular readers also know that our problem with state courts is that most of them are filled at all levels with judges who are elected. We won't repeat all of our arguments here. America outgrew electing state judges generations ago, and to continue this practice is wrong.

In that regard, do see Mark Stern's recent excellent if somewhat disturbing article in Slate entitled "Justice for Sale: SCOTUS is poised to make judicial elections even more corrupt". Stern predicts that, in a new Florida case before Supreme Court, the Court's holding in Citizens United v. FEC (2010) that the First Amendment prohibits government from restricting independent political expenditures in federal elections by a corporation or association will be extended to state judiciary elections. As we've urged for years, let's put an end to the popular election of American state judges. See, e.g., "Is that a popularly-elected state judge in your pocket? Or you just hugely happy to see me?".

In the vast majority of American states, judges are still elected. That American regime is third-rate, a global embarrassment, expensive and, frankly, looks and smells fishy, even where elected judges are honest and able. Indeed, the process taints all elected judges. Moreover, as Stern's article points, no other developed nations have this tribal and arguably medieval selection method for the judiciary. We think judges should be appointed on a merit system by people who know how to identify and evaluate the excellent lawyers we want on the bench. The elections still conducted in some form by 38 states provide us (with a few notable exceptions) with the dregs, gives elected judges "constituents" and makes justice seem as if it's for sale.

Say no to popularly electing judges. Get your state legislators off their knees.

Posted by JD Hull at October 24, 2014 01:18 PM


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