The CCDLA, the bar association for criminal lawyers here in Cleveland, had its first meeting of the new year last night, and several candidates stopped by to make their pitch. One was the Republican candidate for prosecutor, a long-time defense lawyer who roused a sympathetic crowd with promises of victory over his Democratic opponent, a former prosecutor and judge, who found few favorites among the criminal bar in either endeavor. We all cheered and clapped, and it was good fun, because every one of us, including the candidate, knew he had a better chance of being the next Pope than the next county prosecutor.
Then came the judicial candidates, Sweeney and McClelland, in one of the saddest races we've had in this county. Sweeney (full disclosure: he's a good friend) has been a public defender, and has one of the sharpest minds I know. McClelland spent 31 years in private practice with a civil firm before being appointed to the bench in 2011, and has quickly established a reputation as one of the smartest and fairest judges on the bench. The sad part of the race is that one of them has to lose. That, and a discussion with another judge that morning, got me back to something that I've always wondered.
Why the hell do we expect the average person to vote for judges?
Not why we elect judges, mind you. I know all the reasons for that, some of them are good, some not so good. But they all hinge upon an electorate making an informed choice, and I just don't see how that can happen. If I'm some guy who runs a flower shop out in Westlake, how would I go about deciding between Sweeney and McClelland, or the judicial candidates in any other race? I'd probably want to know about what they'd do as a judge: would they be hard on crime? What are their views on treatment versus prosecution of drug offenders? Do they think there are too many frivolous lawsuits? They can't tell me any of that, or anything else about what kind of judge they'd be, because those issues might come before them, and if they say anything about it, they'll be deemed to have "prejudged" it. That's why you had Clarence Thomas telling the Senate Judiciary Committee in his nomination hearings in 1991 that not only did he not have an opinion on Roe v. Wade, but he'd never, ever even discussed the case with his friends or law school classmates. I don't know if he was telling the truth about Anita Hill, but I know he wasn't telling the truth about that, and so did everybody else.
So, deprived of the ability to evaluate a candidate in the normal way -- by deciding how closely the candidate's political views align with his -- what's the poor shop owner to do? One of the things he can do is go to Judge4Yourself.com. The various local bar associations have always endorsed candidates, but in recent years they've gotten together and now have a committee which jointly interviews the judicial candidates. Each organization then rates them, and you can find the ratings on Judge4Yourself.com. ("That number once again is...") This at least tells the average person what other lawyers think of the person, and lawyers are, after all, the ones in the best position to evaluate a judge.
Three things about that.
First, if you're going to essentially tell people, "pick the judges the lawyers tell you to pick," why don't we eliminate the middle man and have the lawyers pick the judges?
Second, it's not clear that this works, assuming that it should. I guess I could go back and see what the correlation is between a judge's judicial ratings and the election results, but I'm fairly certain that it's not anything close to a perfect one. Lawyers don't have the greatest reputation, and their opinions on this are likely to be treated by the masses with a touch of skepticism. I remember years ago the bar association felt that one judge was so bad they took out a full-page newpaper ad the day before the election, urging his defeat. He won handily, and served another two years before he got caught taking bribes.
Finally, it's not what "lawyers" think of the judges, it's what the lawyers who regularly deal with those judges think of them. And it may not even be that: it may be what the lawyers who are on the interviewing committee think of those judges. I noticed that the CCDLA gave "excellent" ratings to several judges who, in my opinion, didn't merit it. Not that they're bad judges, by any stretch, but they're judges who show up at 9:30 or 10:00 in the morning. And I'm sorry, but you could be the fairest, smartest, most pleasant judge on the bench -- hell, you may rule in my favor 100% of the time -- but an excellent rating from me means you've got excellent work habits, too.
Besides that, what would I look fair? A good gut instinct for fairness. Sometimes there's a gap between what the law is and what it should be, and a judge with a good instinct for fairness will make the right choice. That's where smarts come in, and they're very important, too: a smart judge will be able to figure out how to bridge the gap between what the law is and what it should be. Some measure of compassion is necessary, too; if you don't realize how you affect people's lives, you probably shouldn't be on the bench. And last but certainly not least, temperament. Being fair means acting fairly, and that means keeping a tight rein on your emotions. Doesn't mean you can't express your feelings when you're sentencing the guy who raped his seven-year-old daughter, videotaped it, and posted the videos on the Internet. But don't need to do that when you sentence the guy who snatched some lady's purse, or who picked up his third 5th-degree felony drug trafficking case in the past six years.
At any rate, if that flower shop owner is still in the dark, just give me a call, and I'll tell you what you need to know. Trust me.