The NYT's Clifford Levy complains: "In New York, where State Supreme Court judges are elected rather than appointed, the dominant political party in a county can virtually dictate who goes on the bench..."
It's not clear why Mr. Levy thinks elections are worse in this respect than an appointment system, under which the dominant political party in a state can actually dictate who goes on the bench.
Whether election or appointment is the mechanism, judicial selection is always a little shady because the general public has so little idea of who is qualified to be a judge. On one hand, local politicos and unions can easily tell their minions who to vote for (because who knows, anyway?), and voter guides usually contain the ABA's notorious qualification rankings, which appear to screen for safely center-left politics as much as for professional experience.
On the other hand, governors in appointed systems shamelessly appoint loyal cronies to the courts. Certainly they did in Hawaii, the state where I grew up, and there's little public outcry about their selection (because who knows, anyway?).
Elections introduce what is either a terrifying randomness or a delightful unpredictability to the process, depending on how you look at it. There is such a thing as an incompetent judge in a purely non-ideological sense, and judicial elections always produce a few judges who make both plaintiff and defense attorneys groan equally.
On the other hand, elections make it possible to bring outsiders into a legal process that is, to a substantial extent, political. Washington State's Justice Richard Sanders is a perfect example. Washington needed an irascible libertarian land use litigation attorney on the court. They got one who thinks lap dancing is a constitutional right. What governor would appoint this guy?
Having the right name can make all the difference. My state constitutional law professor ran for an open seat on the Washington State Supreme Court a while back. In professional terms, he was clearly the best candidate for the job: a very smart, scholarly lawyer with many published articles and over a decade of experience handling appeals in important state constitutional cases with one of Washington's most prestigious firms.
Unfortunately for him, his name was Hugh Spitzer. It just doesn't roll off the tongue, and the fact that every downtown Seattle law firm loved him wasn't going to give him magical ballot appeal to voters who read about their choices for the first time in the voting booth. He lost. To a woman musically named Faith Ireland.
Posted by Marie Gryphon on August 18, 2003