Commentary : Trial Judges Should Be Appointed

In the trial courts, all judges, regardless of how they reached office, must run in a nonpartisan election every six years, and those appointed by the governor usually run for election in the next primary after appointment.

How is the public to judge the candidates?

The qualities that make a good trial court judge are legal ability, intelligence, experience, integrity, patience and energy (not necessarily in that order) and, above all, a sense of fairness. These qualities are seldom the issues raised in judicial campaigns.

Candidates perceive that the public is so concerned about crime that the candidate who appears to have the best connections, however remote, with law enforcement, or who promises to be the toughest on criminals will almost surely win the election. One cannot quarrel with that perception after viewing the experience with contested trial court elections in recent years.

It is not my purpose to promote or disparage the candidacy of any individual who may be on the ballot this year, but the public is not well served by such campaigns because trial judges are not in a position to change the “direction” in which the criminal laws are moving. Any trial judge who imposed the maximum sentence on every criminal (as some judicial candidates for election have implied they would do) would almost certainly be disqualified from hearing criminal cases.

What the public really needs are qualified trial judges who can handle with fairness the mountains of litigation in addition to the criminal cases, which have absolutely nothing to do with a judge’s philosophy about crime and punishment. When candidates place so much emphasis only on crime and criminals, they are simply pandering to the perceived necessity to win. It tells the public nothing about whether that person will make a good judge.

Where can the voters look for help in finding the best persons for the trial court bench? Certainly the endorsement of reliable newspapers should be considered because most of them do some investigating on their own before making endorsements. Another source is the local bar association’s evaluation polls or ratings, but a word of caution there. Although the attorneys who practice in the courts regularly certainly do know a lot more about the judges than most citizens, the percentage of lawyers who respond to such polls is usually very small.

Usually the endorsement of special interest or political groups are of no help to the voter. Even endorsements from other judges are not completely unbiased, for the judges are usually friendly with their colleagues and may not really know much about the challenger.

In essence then, there is a serious problem for the public because of lack of opportunity to learn which candidates have the qualifications needed to make a good judge. In my opinion, this is the best reason for changing the present election method for trial judges.

I believe the public would benefit from having some form of retention election for trial judges similar to that for the appellate courts. By eliminating the contested election the public would be spared the misleading campaign rhetoric and would then be able to evaluate each judge’s record.

I realize that many people are unwilling to give up any right to vote on judicial offices and allow the governor to make all appointments to the trial courts. However, many people are not aware that the governor is required to submit all proposed appointees to a Commission on Judicial Nominees Evaluation for its evaluation and recommendation before he can appoint them to the trial courts. No governor in recent years has appointed anyone found unqualified by the commission, so the public does have some assurance that an attempt to weed out unqualified attorneys is made.

It should also be emphasized that there is a disciplinary body overseeing judges’ conduct. The Commission on Judicial Performance and the Supreme Court have the power to remove or discipline judges who are unfit for office, and on several occasions judges have been so removed. So the public does not need contested elections to get rid of bad judges as it does for elected officials in the legislative or executive branches of government.

There is no evidence that contested trial court elections produce better judges than appointments by the governor. Therefore, I believe that the public would gain more than it would lose by having some form of retention election replace contested elections for trial courts. Most of the problems associated with campaigns would be eliminated and the public, although giving up the right to vote candidates into judicial office, would still be able to remove judges from office. Trial judges would then be running only against their own record in office after their appointment by the governor.

Such a system would spare the voters the misleading rhetoric of present judicial campaigns, permit the voters to retain qualified judges and still retain a vehicle to vote out of office those who are not.