| Politics Will Inevitably Be a Part of Judicial Selection
St. Paul Pioneer Press
January 14, 2003
Editorial by Sally J. Kenney
The Pioneer Press is right to worry about judicial independence
and the effect of recent decisions (editorial, Dec. 16). No state
in recent history, however, when given the choice to give up electing
judges to merely vote whether to retain appointed judges (the Missouri
Plan) has done so. Nonetheless, we should still consider which system
of selecting judges is best and why.
Two often-overlooked concepts are fundamental. First, the United
States is a constitutional democracy. We restrict a democratically
elected government from violating fundamental rights. We have charged
the judiciary with checking governmental power. Judges must therefore
be independent, threatened neither with job loss nor violence.
Second, no bright line separates law from politics. While judges
must uphold the constitution and are not free to enact their policy
preferences, constitutional interpretation is not a deductive enterprise.
Judges do not simply apply rules. They reason from precedent and
principle. Because we disagree about what constitutes cruel and
unusual punishment, when speech becomes conduct, and what the equal
protection of the laws entails, judges' life experiences and philosophy
matter.
What is this politics that must be kept out of judicial selection?
Politics is the system for determining who gets what how. Plato,
however, saw politics as about answering the question, what is the
good life? Politics is also the process of interpreting what things
mean, from whether the death penalty deters murder to what liberty
requires.
Judicial independence requires that judges cannot be obliged to
donors, constituents or parties. They cannot permit a governor or
mob boss to tell them how to rule. We expect them to listen, consider
arguments and deliberate, but we cannot expect them to be a blank
slate, free from ideology and experience.
It is a mistake to base proposals for judicial reform on the lie
that law is not political and that we are simply after the best
person for the job, without defining what merit entails.
By promoting the myth of a bright line between law and politics,
we merely shift the politics from masses to elites and move it behind
closed doors. The political preferences of the governor's judicial
appointments commission or the bar association prevail instead of
the voters.' Minnesota elites have long been edgy about voters'
abilities to make sound choices among judicial candidates for good
reason.
Judicial elections now suffer from the pathologies of presidential
and legislative elections dominated by money. Judges compromise
their integrity when they must raise vast sums. The quality of debate
is impoverished when groups can hide their spending and negative
television ads simplify and distort the issues. The Chamber of Commerce
seeks to unseat judges who are pro-plaintiff in tort actions; others
target judges who overturned capital convictions or term limits.
Disturbing as such trends are, it does not follow that citizens
should never participate in choosing judges. In England, neither
citizens nor legislators participate in choosing judges; women,
minority men and those educated at state schools are largely excluded
from service, and most of the citizenry regards the judiciary as
out of touch.
Maybe we need more public education about tort reform or sentencing
policy to counter smear campaigns. Perhaps the League of Women Voters
or the bar associations could explain whom they have endorsed and
why judicial independence is important.
Whether it is Germany, France, Hungary or South Africa, politics
are transferring more decision-making authority to courts. How have
they avoided the judicial appointment gridlock that paralyzes Congress?
Like Germany, we could appoint judges for a single, nonrenewable
term, ensuring their independence but also some opportunity for
change over time. Judges would not have to give up retirement or
serve while ill in order to hold on for a president of their party
to take office.
Alternatively, we could make multiple appointments at the same
time, eliminating the fight to the death of the zero-sum game of
a single seat. This would likely enhance judicial deliberation by
making sure all points of view garnered a hearing.
Neither system of elections or appointments is without its dangers.
But we are not well served by pretending we can remove the politics
of judicial selection by merely placing it in the hands of elites.
We are better served by a public debate about the role of the judiciary
and deserve a bench that represents us in all our diversity.
Kenney (Web page: www.hhh.umn.edu/people/skenney)
is a professor at the Humphrey School at the University of Minnesota
and directs the Center on Women and Public Policy.
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