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Published On: February 25, 2015Categories: Litigation

John Oliver Is Not Wrong About Judicial Elections

What Should we Do About Judicial Elections?

I’m not a huge fan of John Oliver’s news program “Last Week Tonight” — It’s too self-congratulatory and not nearly as funny as the Daily Show or Colbert (was). But, I have to say this coverage of judicial elections and the problems inherent in them is pretty timely. See it here:

The Supreme Court’s Yulee Decision–What It Really Means

The Supreme Court’s recent ruling in Williams-Yulee comes to mind. Williams-Yulee was running for judge in Florida and sent a mass-email asking for donations of up to $500. She ultimately lost the election and claims she did not receive any donations. But she violated the Florida election rules and was prosecuted. She appealed all the way to the Supreme Court. The Supreme Court held that restrictions on fundraising, even by a candidate for judicial elections, is a right guaranteed by the First Amendment.There’s a great discussion here.

That sounds great and I’m not here to quibble with the highest court in the land.

But the problem still remains that judges are people. They are usually funded by lawyers and law firms. They have limits on how much they can get from any one lawyer or law firm, but those limits still favor the wealthy, large and established lawyers and firms.

Does that mean they get all the breaks? No it doesn’t. I’ve been impressed by how fair our judges in town have been. However, I’ve also noted how many decisions often don’t get made when two doners stand before a judge on opposing sides.

A Solution to Judicial Elections

I think there are equally problematic scenarios that arise when a judge is appointed for life, as federal judges are. I won’t get into that here either Suffice it to say that in my experience judges eventually lose touch, don’t have much accountability, and their opinions and decisions tend to become politically polarized.

So what do we do?

I think we ought to hybridize the solution. In other words, Judges should be publicly elected to their first term of eight years, appointed to a second term of 4 years by a bipartisan committee, and then be done.

This would have a lot of benefits. First, the judge would never be soliciting or accepting funds from the very people who appear before her. Second, the 8-year term outlasts most other election cycles, and thus allows the judge the time and luxury to make decisions that will not redound to her determent in the future. Third, the fact that she would have to be appointed again give some accountability (e.g., to a governor or committee) to ensure performance standards are met.

Is this solution perfect? No. But I do think it is worth consideration. I once heard a speech about amending the constitution to limit Supreme Court justices to 18 year terms. I LOVE that idea. Let’s work on these.