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Justice For Sale November 16, 2007

Posted by federalist in Judiciary.

Retired Justice O’Connor laments the fact that politicized judicial elections in many states have decreased public confidence in the impartiality of the courts. She shills for her profession by suggesting that civic education and merit-based judicial appointments can solve this problem.

The reality is that judges themselves bear most of the blame for the politicization of the judiciary. An impartial judiciary is an essential part of American government, but judges in recent generations have increasingly taken on activist roles. Since they increasingly usurp functions of the legislative and executive branches it is no longer enough to ask whether they are “qualified.”

Justice O’Connor tries to whitewash the actions of judges in my home state of Pennsylvania for accepting “a legislatively enacted pay raise.” The real story on the 2005 pay raise scandal is that it was an unconstitutional act. Even though it was quickly repealed for everybody in government, the judges (amusingly, citing a different clause in the constitution) ruled that the unconstitutional pay raise could not be repealed for them.

Perhaps some blame could be apportioned to constitutions that offer The People little recourse for reigning in activist judges. In Pennsylvania judges only face retention votes every ten years, and there is no constitutional mechanism for recalling them.

Of course, constitutional reforms wouldn’t be necessary if judges took down the “For Sale” signs and returned to their traditional calling as impartial adjudicators of the law.



1. A.P. Brady - December 5, 2007

Justice O’Connor provided a valuable public service to the country by serving as a Justice on the Supreme Court, and I thank her for her service. Unfortunately, she has lost her way on this issue.

The truth is that there is no such thing as “merit” selection nor is there any repository of “accurate and unbiased” information about judicial candidates. The primary indicator of “merit” in merit selection systems is a political connection between the appointing authority and the judge. This connection is either direct or it is provided by judge’s supporters.

O’Connor points to the Annenberg Public Policy Institute for support of her opinion that judicial elections decrease public confidence in the courts. Well, that language is in the report, I guess because Kathleen Hall Jamieson put it there. However, the survey does not include that inquiry. The closest question was about the extent to which raising money for election affect a judge’s ruling once in office. Only 8% said there was no effect. Significantly, there was no corresponding question in the survey which asked the extent to which politics would affect in a judge’s ruling in a system where the governor appoints the judge. It wasn’t asked but I’ll venture a guess that about 8% would say it would have no effect.

The survey points out that 39 states have some form of elected judges. Well, the survey shows that confidence in the judiciary (60%) is higher than in the legislative or judicial branches. Forty-nine percent disagreed with the statement “Judges are just politicians in robes.” (What kind of survey uses a loaded statement like that?) Finally, and importantly, 64% of those surveyed favor direct election of judges. There is simply no evidence that justice is for sale, and people are generally satisfied with the election of judges.

My final point begins with a question – What decision by what elected judge has undermined your confidence in the judiciary? Virtually, every decision which undermines public confidence (those relating to abortion and the death penalty for example) have been made by appointed (activist) judges.

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