Another tilt at judicial reform
Gallagher's a good political name in Cuyahoga County. I can't remember when there haven't been at
least two or three judges by that name. A
full quarter of the twelve judges on the appellate court are named
Gallagher. There's one on the general
division of the common pleas bench, and one in the probate division. Like I said, it's a good political name.
Michael Gallagher realized that, too, back in 1990. He'd had a nondescript career as an attorney
-- I'd had a case with him once, and frankly, I wouldn't let him wash my car --
but he'd put in the six years as a lawyer that is the sole requirement to run
for judge, so he got the necessary 100 signatures on a nominating
petition. The $50 he spent to file it
was the only expenditure of his campaign.
He did no campaigning. He
won. His judicial career lasted only
five years, when he was convicted of selling cocaine to an undercover DEA
agent. So you'd figure that Michael
Gallagher would be the poster boy for merit selection of judges in Ohio,
wouldn't you?
O'Connor apparently decided that she didn't want to beat a
dead horse, or get beaten by one. Merit
selection -- appointing, rather than electing, judges -- has an unhappy history
in Ohio. In 1949, Missouri adopted what
became known as the Missouri Plan:
judges were appointed, then subject to elections to determine whether
they should be retained. It could have
become known as the Ohio Plan, because that precise method was submitted to the
voters here in 1938, only to lose by a 25-point margin. The proposal was floated again in 1987, and
got similarly thrashed, losing in 80 of Ohio's 88 counties. Efforts to revive the idea in 2002, 2003, and
2009 never made it to the ballot, and O'Connor pointedly noted that polls show
over 80% of Ohio voters remain opposed to the idea.
O'Connor instead focuses on increasing voter participation
in judicial races by various methods, including moving the judicial races up on
the ballot, having them in odd-numbered years, and increasing methods of
providing voters with information about judges.
What that would accomplish is open to conjecture. To be sure, one of the reasons a lot of people
don't vote for judges is because they don't have information on them, but the
problem there is that, unlike other candidates, it's hard to acquire voter-relevant
information. A voter can choose a
congressional candidate on the basis of the candidate's views on a wide range
of political issues. What are the
criteria for voting for a judge: how
well she controls her docket?
But this sidesteps two questions. Eighty-seven percent of state judges in
America are elected. This happens
nowhere else in the world; outside of cantons in Switzerland, and the Japanese
Supreme Court (and the elections there are a mere formality), judges everywhere
else are appointed. True, in many of
those countries they don't have elections for anybody, but the European countries all look at judges as
completely outside the realm of politics.
As technicians, really; I ran across this New
York Times article in which a
French judge talks about the arduous training he had to undergo to become one,
beginning with a four-day written exam which barely 5% of those taking the test
pass. And for that matter, it's not just
other countries which appoint judges. We
do, too, on the Federal level. The
decision to have state judges elected amounts to a stunning rejection of the
Founding Fathers' view of the need for an independent judiciary.
The second question is really the key one: what effect does electing judges, rather than
appointing them, have on the quality of the judiciary? From my perspective, which spans close to
four decades now (and I feel like I should be pausing to drink a glass of
Metamucil as I write that), I'm not sure it makes that much difference. It's certainly a lot better than it was. When I began practicing, there were a number
of judges who'd basically been given the job as a reward for being a reliable
party hack. You rarely see that any
more. And voters seem to be wising up to
the name game. A Michael Gallagher
probably couldn't get elected nowadays.
This past election, two very good judges were retained by the voters,
despite running against candidates with more reliably "political" names. (That's not to denigrate the candidates who
were running against them, both of which would've made good judges, too.)
But still... One of the
interesting aspects of all this is that while polls show the public insists on
electing judges, those same polls show the public to be wary of judges making decisions
on the basis of politics, not justice. O'Connor
admitted as much herself; one of her proposals is to do away with partisan primary
elections because they "fuel the perception that judges are susceptible to
political influence." That wariness is
not undeserved. As I talked about
five years ago when the Supreme Court upheld tort reform statutes virtually
identical to the ones they'd twice struck down a few years before, the different
result came in the wake of changes in the composition of the court, changes which
were partly the result of major campaign contributions by health and insurance industries,
the main beneficiaries of tort reform. And
let's not forget the two Cuyahoga County Common Pleas judges who recently went
off to Federal prison for their participation in the county corruption scandal,
participation that was solely prompted by their desire to curry influence with
political powerbrokers.
Some have suggested that the answer is to greatly reduce the
contributions to judicial campaigns.
Whether that's possible at all is a dicey proposition, given the US
Supreme Court's views that contributions are protected speech under the First
Amendment. Whether it's plausible is yet
another matter. The basic problem is
that if you're going to have judges selected through the political process, as
the public obviously wants, it's very hard to take politics out of that.
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