If there’s one inescapable conclusion to Review-Journal reporter Jane Ann Morrison’s excellent story last Sunday, it’s this: We’ve got to stop electing judges.
The article revealed a judicial candidate’s allegations that he was approached by a political consultant and offered campaign contributions, if only he’d run in another department.
Nevadans had the opportunity to stop electing judges in 2010, with Question 1. It would have allowed the governor to appoint judges, who would then stand in retention elections every six years. If they failed to garner 55 percent of the vote or more, they’d be turned out of office, and the process would begin anew.
It was a sensible, practical idea. And like many other sensible, practical ideas in Nevada politics, it failed miserably: 58 percent to 42 percent.
But with the allegations Morrison reported — on top of the long and sorry history of judges who probably should never have been on the bench in the first place — there are plenty of reasons for the voters to reconsider their 2010 decision. Here are just a few:
■ It’s a specialized decision. While voters are perfectly capable of evaluating state and local lawmakers, judges are a different story. They’re members of a professional group that requires an advanced degree, and most voters never get a chance to see them in action. Even if they did, it’s difficult for nonlawyers to gauge the quality of judges.
Yes, there are resources available to help voters make a decision. The most popular is the Review-Journal’s biennial Judging the Judges survey, in which lawyers rate Supreme Court justices and all Clark County jurists, from District Court down to Municipal Court. Although some judges object to bias in the survey, I’ve always found the survey to be a useful tool in identifying weaker judges and, regardless of its flaws, it’s certainly well-read inside the Regional Justice Center.
But is that survey a substitute for a panel of experts who would select from a slate of qualified, experienced applicants, which would happen in an appointment system? Not even close.
■ The appearance, and the reality, of corruption. When judges run in contested elections, like politicians, they have to try to raise more money than their opponent. And the natural constituency for judges is lawyers, usually the very lawyers who appear before them in court. So you have the unsightly picture of a judge asking for money from someone over whom he or she exercises great power, and lawyers who have a great deal at stake in that judge’s decisions (sometimes millions of dollars), offering contributions. It’s an unseemly arrangement, to say the least.
And don’t think judges are above the petty to and fro of politics. The late District Judge Jeff Sobel was known for half-jokingly telling lawyers he knew who’d contributed to him and to his opponent. While most judges aren’t that blatantly vulgar about it, it’s impossible to believe Sobel was the only one who kept track.
Yes, judges in an appointment system would have to stand for retention elections and would still have to raise some money. But it’s one thing to run unopposed and quite another to have to try to outraise several opponents.
■ Voters still get a say. A key argument against appointments is that voters shouldn’t give up their right to elect judges, even if they know little about the candidates and notwithstanding the fact that some voters skip those races entirely, or just punch the name they saw on the sign on the street corner. But with a retention election, there’s a safety valve of sorts if a bad judge somehow gets on the bench or a good judge goes bad. Voters give up nothing.
Switching to a system of judicial appointments would require a constitutional amendment, so either voters or the Legislature need to put the question on the ballot again. They should — as quickly as possible.
Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or firstname.lastname@example.org.