Wednesday, February 18, 2009

Another Blame-The-Voters Editorial In 3, 2, 1....

Here's betting the Wisconsin State Journal pounces on the federal court ruling striking down a ban on judges joining political parties as further evidence Wisconsin needs to do away with court elections.

Before readers swallow what the State Journal will almost certainly serve up, they really should read the ruling judge's own insights on the matter.

In her decision, Federal Judge Barbara Crabb wrote "it is no small task to determine the best way to promote judicial integrity" but goes on to say that "(d)espite the challenges, it does not follow that the government, the legal community and the general public should simply throw in the towel and adopt an 'anything goes' approach. Nor does it mean that states must abandon elections if they wish to have any meaningful influence over judicial conduct. Although many in the legal community demonize judicial elections and exalt a system of appointment, a 'merit' selection process has its own flaws and is no guarantee that the judiciary will be free from partisan bias or the perception of it."

To underscore her point, Judge Crabb cited a study of federal appeals court decisions showing that the political party of the appointing president is an accurate predictor of how judges will vote and that decisions are more extreme when an appellate panel is made up of three judges appointed by a president of the same party. She also discussed the common assumption that Bush v. Gore would have been decided differently if the candidates' positions in the deadlock had been reversed.

Crabb observes that "(e)ven if it could be demonstrated that a nonelective selection process were superior, it is unlikely that the more than 30 states that use elections will abandon them any time soon."

She concludes, "Whatever route the government takes, it should be hesitant in seeking to improve the judiciary by limiting the discussions that candidates may have with the public. Such measures not only risk violating the rights of the candidates and keeping voters ignorant, but 'signal disrespect for the equality of citizens with their decision-makers' by assuming that voters must be protected from their own bad judgment."

Hear, hear.

1 comment:

Anonymous said...

The problem with judicial fairness lies not with the appearance, or public perception of integrity, impartiality, and independence. The problem is the reality, or lack of same, of those qualities, and the veil intentionally drawn over the public's eyes.

It is untrue that what we don't know won't hurt us.