Going the Wrong Way

When I was practicing law, it wasn’t uncommon for clients to express apprehension about going to court. Among their concerns was the relationship between the judge and the lawyer representing the adverse party—were they poker buddies? Had the lawyer contributed to this judge’s campaign? Did he or she practice with a law firm that had hosted a fundraiser for the judge?


Let me hasten to say that in my seventeen years of active practice, I never personally encountered a judge whose rulings appeared to be influenced by political contributions. (The one exception was a widely reported corruption trial of a judge in an adjoining county, who was convicted of trading favorable decisions for campaign cash.) In other parts of the country, however, elected judges have increasingly been found guilty of “selling” justice for campaign contributions and other electoral assistance. This has become a matter of considerable concern to the profession; Justices Kennedy and Breyer have recently expressed concern that judicial campaigns may be undermining judicial integrity and independence. A wide variety of “good government” organizations are working to take judicial selection out of the electoral process.


What’s wrong with electing judges?  The answer to that question involves the nature of a judge’s job.


The ideal jurist should have solid legal skills, a “judicial temperament,” and unquestioned integrity. Most importantly, he or she must be guided by the rule of law—not the desires of the electorate. People who argue for judicial elections in order to get judges who will be “responsive to the voters” do not understand the role of the judiciary in American law. (If judges  answered to the “will of the people,” America would still have segregated schools, bans on interracial marriages and poll taxes.)


In our system, the legislature is the branch of government accountable to the electorate; the judiciary is accountable to the constitution and the law. And because law is a specialized field, deciding who is qualified to be a judge requires specialized knowledge on the part of those who are doing the choosing. At the very least, it requires that judicial candidates be screened for the necessary skills by their peers in the legal community.


Just as every M.D. isn’t qualified to perform heart surgery, every lawyer isn’t qualified to be a judge. As a lawyer friend recently put it, “Politics will never be absent from judicial selections, but at least with merit selection you can hopefully avoid having a charming nincompoop chosen by an ill-informed electorate.” Judges ought not be selected on the basis of nifty bumper-stickers and catchy jingles.


In Indiana, judges are elected in every county but two: St. Joseph and Lake counties. Now the legislature is proposing to change judicial selection in St. Joseph County from appointed to elected. No one seems to know what triggered this change, which has quietly sailed through the session despite opposition from the State Bar Association, the local Chamber and the Indiana Lawyer, among others.


Your Indiana legislature–proudly moving Indiana backward.