Thursday, December 12, 2002
Copyright © Las Vegas Review-Journal

COLUMN: Steve Sebelius

It's obvious: appoint

If you were to sit down and devise the absolute worst way to put a judge on the bench, you couldn't come up with a method much worse than elections.

The fact that elections seem to be popular with voters, appear to keep judges more in tune with public opinion, and hew to the American preference for democracy are probably the worst arguments for the election of judges, too.

These convictions weren't shaken at the UNLV Center for Democratic Culture's all-day Tuesday forum titled "Judging the Judges: Should We Elect or Appoint Nevada Judges?" If anything, they were affirmed by the stories, opinions, statistics and findings of panelists.

My answer, and, I think, the answer: appointment.

The reasons are myriad, but here's the most important: money. There is simply no way for a judge to solicit money from those who will appear in court and avoid the perception -- if not the reality -- of bias and favoritism. You simply can't deny it.

Election supporters will argue the same perception clouds races from City Council to president, and they're right. You don't have to look far -- especially here in Clark County -- for politicians who may as well be on the payroll of their contributors.

But while we may cynically know that judges are simply lawyer-politicians draped in black robes, they're not supposed to be that way. We expect senators and assemblymen to be passionate advocates for their ideas. We expect -- and we should demand -- that judges be objective interpreters of laws, despite their political passions. They are, after all, a check on the power of the legislative and executive branches of government.

But to have judges elected like every other politician is akin to having one team paying the refs in a football game; even if the calls are solid, the perception of bias is there.

As proof, look no further than the District Court race in Department 5, between incumbent Judge Jeff Sobel and attorney (and Judge-elect) Jackie Glass.

Sobel created headlines when he pointed out to lawyers at the courthouse that he was very aware of who had and had not donated to his campaign. Everyone involved knew the judge was joking, but underneath the humor was the lingering perception that judges keep track of their contributors.

And Sobel criticized Glass' aggressive fund-raising after he'd heard that Glass' husband and law partner, Steve Wolfson, had told contributors to "get on the winning side." (Wolfson says he made the statement to assauge the fears of donors who worried about offending an incumbent by donating to a challenger.) After Sobel was defeated in a landslide, Glass sent a fund-raising letter to Sobel donors, inviting them to give to her campaign.

How can you avoid the notion that if you don't contribute, you may be on the outs with a judge?

"I think you have to, as a judge, hope that you can do that," says Glass. "You base your decision on the facts, the evidence and the law. And that's exactly what I'm going to do."

There's no reason to think otherwise of Glass, whose reputation earned her many legal and law-enforcement endorsements. But what about judges who may not be fair to those who have not cut checks? Saying "trust in the system" doesn't cut it.

Appointing judges, by contrast, would remove some of the corrupting influence of money. "Money totally perverts and corrupts the system," says forum participant and unsuccessful judicial candidate John Curtas. "When you hand a dollar to someone, you alter your relationship with that person." And he's absolutely right.

In the federal system, where judges are not only appointed but also earn lifetime tenures, there is less pressure to rule in ways that will appease contributors, or even voters. Nevada Supreme Court Justice Nancy Becker notes that federal judges made hard civil rights decisions that would have been impossible for elected state judges who were subject to the passions of a racist, segregationist public.

It would be hard to argue for lifetime appointments for all judges, however. That's why Missouri invented retention elections, in which only the judge's name appears on the ballot, and voters are asked to keep or reject that person. It's still flawed; a judge targeted for removal would have to raise money to stay in office, and he could still be disrobed for unpopular rulings.

Some say the public is smart enough to elect good judges, but most people have little idea who they're voting for when it comes to the courts. (It's not a secret; both Las Vegas newspapers publish election tabloids with judicial candidate information. The real problem is that, while voters say in surveys they like to elect judges, they really don't care too much when it actually comes to doing it.)

UNLV political science professor Michael Bowers says there's little chance of doing away with judicial elections, but it would be a shame if he were right. The Missouri Plan has its flaws, but it's still marginally better than the system we have in place now. Nevada ought to move in that direction, quickly.

Steve Sebelius is a Review-Journal political columnist. His column runs Tuesday, Thursday and Sunday. Reach him at 383-0283 or by e-mail at ssebelius@reviewjournal.com.