Wednesday, February 25, 2015


John Oliver on elected judges

I love that he took on this topic.  I think it is more complex than he recognizes, though... and there are some decent arguments for electing judges.  For example, in a state like Texas it is one way that local political difference find effect-- because the culture and politics of Austin is different than what you find in Amarillo.

Love that ending!
I have mixed feelings about electing judges. My qualms are twofold: First--and this is what Oliver seems to care about--is that judges should not always be responsive to political pressure (tyranny of the majority and due process and whatnot). Second, so few people actually participate in judicial elections that the political process probably doesn’t work well as a safeguard against conflicts of interest, bias, and corruption.

But I am similarly bothered by the lack of a compelling alternative. What Oliver seems to look past--and this is endemic to shows like his, where comedy is used to make partisanship more palatable under the guise of "I just tell jokes"--is that while electing judges is not perfect, neither is the most obvious substitute: appointment. Oliver admits this, but makes no effort to explain why.

Oliver is pretty funny, but on this issue I hear the dull thud of elitism (read: uninformed condescension) smacking into the reality of life beyond New York City. There is no small irony in the fact that Oliver would like (I assume—he never actually offers a solution) to replace these bought-and-paid-for, redneck elected judges with those appointed by Koch-owned, redneck governors (or, you know, the blue state alternative). He also seems to imagine that like the U.S. Supreme Court (which he thinks is staffed with dogs, at least 4 of which are "bad dogs!"), there is a long list of qualified, distinguished jurists lining up for Philadelphia Traffic Court or Pecos County Justice of the Peace, Precinct 4.

The way money impacts judicial elections, particularly for state supreme courts, is disturbing. But would Rick Perry, with the advice and consent of the Texas Senate, appoint folks with fewer apparent biases? Probably not. Though I can see how removing the specter reelection might facilitate good judgment. Is there a compromise?

As an alternative, I like the Missouri Plan. (Non-partisan committee proposes a handful of candidates to the governor, who appoints with the advice and consent of the state senate, and the judge stands for retention at the next general election.) I particularly like the Missouri Plan in places like Harris County, Texas. There are 50 elected judges on any given ballot: 3 or so Supreme Court justices, 3 or so Criminal Court of Appeals justices, 4 or 5 justices on the First Court of Appeals, 4 or 5 on the Fourteenth Court of Appeals, then 30 or so district court and county court-at-law judges, and 2 JPs. I practice law in Harris County, and I could only name maybe 10 judges off the top of my head (including Jim ";-)" Sharp). So what happens is that every couple years, you have these wild swings where Democrats will take every judgeship in 2012, then Republicans take every judgeship in 2014. That's no good for anybody.

The bottom line for me is that I want a competent decision-maker picking judges. I see the control arguments, but I think non-partisan retention elections address that.
CTL & Jeremy, you both make very good points.
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