I filled out my absentee ballot for the California primary this weekend – I am a permanent vote-by-mail voter, but this year I will actually be out of town on June 8. In addition to the campaigns for Governor, Lt. Governor, Attorney General, Treasurer, Controller, Secretary of State, Insurance Commissioner, Superintendent of Public Instruction, State Assembly, State Senate, US Senate, US House of Representatives, County Assessor, County Sheriff and County Board of Supervisors – oh, and five statewide ballot propositions and one local one – I was expected to make an informed judgement about six positions on the Superior Court of Los Angeles, based on… I have no idea. Fortunately, the local Democratic Central Committee does thorough vetting of candidates for these positions, and I can crib off of them, but that requires putting a substantial amount of faith in their decisions. Furthermore, it calls into question what criteria are being made for superior court judges – is it their agreement with a Democratic agenda? Their abilities and skills as judges? Their willingness to be impartial?

All of that is prelude for saying that I completely agree with former Justice Sandra Day O’Connor. There’s no compelling reason for electing judges. In fact, I’d go farther than her:

ALTHOUGH our attention as a nation is focused on the selection of a new justice to the Supreme Court, another judicial process that is also extremely important is happening across the country: the selection of state court judges. But in too many states, citizens are being shortchanged by the way these judges are chosen.

Each state has its own method of choosing judges, from lifetime appointments to partisan elections. But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.

A better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This kind of merit selection system — now used in some form in two-thirds of states — protects the impartiality of the judiciary without sacrificing accountability.

I don’t believe that elections, even in an up-down form after a judge is appointed through the legislative process, provides for any accountability at all. Unless a judge engages in a truly epic screw-up, most citizens won’t know a thing about them when they get to the ballot box. To the extent that they do, it will only be through coordinated smear campaigns and assorted frenzy-whipping. The legislative process is perfectly equipped to remove a judge if he or she fails to live up to certain standards. That would be the impeachment process, and while it shouldn’t be used in a cavalier fashion, if accountability is warranted the public could rely upon their elected representatives to carry out the function.

That is the essence of a representative democracy, after all. And I find little democratic (small-d) in wading through a series of superior court elections without the faintest clue about the participants.

David Dayen

David Dayen

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