Judges and Politics Don't Mix

February 12, 2010

Last year, the Institute for Legal Reform of the U.S. Chamber of Commerce — a group that’s not exactly known for radical, left-wing politics — endorsed Arizona’s system of selecting judges, saying that “Arizona leads the nation with the procedures it has put in place to fulfill the promise of true nonpartisan ‘merit’ selection” of judges. Arizona state senator Jack Harper evidently disagrees. He has put forward a proposal to scrap the current system and replace it with one in which the governor and senate could pick judges based on partisan political loyalty, not their qualifications and experience.

Under Arizona’s current system, nonpartisan judicial nominating commissions review applications for vacant judgeships, and submit the three most qualified candidates to the governor. The governor, in turn, appoints one of the candidates. Later, voters have an up or down, yes-no vote to keep a judge or remove him or her from the bench, in an uncontested “retention” election. 

Senator Harper condemns the current system, saying that it too often leads to the appointment of judges who are too “liberal, activist, and out of touch with the general society,” and that it is dominated by trial lawyers — even though only 5 of the 15 members of the commissions are lawyers. His conservative supporters argue that eliminating the nonpartisan nominating commissions, and putting control of the bench in the hands of partisans in the executive and legislative branches, is necessary to restore “checks and balances” to the judiciary.

It speaks volumes about Harper’s misguided proposal that the system he says is dominated by trial lawyers received a stamp of approval from the U.S. Chamber’s Institute for Legal Reform. The group isn’t usually confused with the plaintiffs’ bar — the Chamber, after all, is the world's largest business federation and represents more than 3 million businesses. And the Institute? Its specific goal is to “neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.” When this group says that Arizona’s system isn’t too “liberal” or “out of touch with the general society” — indeed, when it says the system “leads the nation” — it raises serious questions about the motives of those, like Harper, who attack the system.

The Chamber, incidentally, is not alone in defending the existing system. Retired U.S. Supreme Court Justice Sandra Day O’Connor defends it, too. O’Connor was instrumental in establishing the current system back in 1974, when she was serving in the Arizona senate. She’s come out against Harper’s proposal, telling the judiciary committee that Arizona has “an excellent judiciary at present, and in my opinion it would be against the best interests of Arizona to increase the partisanship in the selection of its judges.”

O’Connor has it exactly right. To perform their constitutional duty, judges have to answer to the law and the constitution — not to political pressure. That’s exactly what Arizona’s system was designed to achieve. As the Institute put it, “[t]he original purpose of using a commission-based merit selection system was to reduce the politicization of the judicial system.” 

Politics and courts just don’t mix. As O’Connor has explained elsewhere, “the legitimacy of the judicial branch rests entirely on its promise to be fair and impartial” and if the public loses faith in that — if the public believes that judges are “just politicians in robes” — there’s no reason to respect judge’s opinions any more than the “opinions of the real politicians representing the electorate.”

Across the country from Arizona, in South Carolina, there’s another fight going on to ensure that judges aren’t perceived as mere “politicians in robes.”

South Carolina is one of only two states in which judges are elected by the state legislature. In 1996, because of concerns about judicial independence and fears that legislators had too much control over selecting judges, the citizens of South Carolina voted to adopt an amendment to the state constitution that would establish a judicial merit selection commission. The idea behind the merit commission was to check the power of the General Assembly, and to ensure that judges were selected based on their qualifications and experience — not the number of favors they’d done for politicians in the legislature.

The problem is that when the General Assembly got around to drafting the statute that would set the ground rules for the new commission, they inserted a provision that requires the majority of commissioners to be sitting members of the legislature. So much for checks and balances.

A lawsuit was filed challenging the current composition of the commission. In the litigation, critics of the system argue that having the legislature control the commission violates its purpose — which, after all, was to check the power of the legislature. 

Various groups, including the League of Women Voters of South Carolina, have weighed in to support the challenge. In a friend of the court brief, the League criticized the current system, saying it undermined the independence of the judiciary:

Judicial independence means, at least, that the judiciary is neither dominated nor controlled by the political branches and that it is disentangled to the extent possible from the forces that influence those branches' policy choices. If judges answer to political parties and electoral majorities to the same degree as legislators, the courts risk being perceived as mere shadow legislatures.

Indeed, the League pointed out, a “court dominated by a legislature risks losing the distinct character necessary for the non-legislative and nonpartisan work of judging.” 

Again: judges and politics don’t mix.

Depoliticizing the bench is a goal as old as the Republic. Alexander Hamilton explained in the Federalist Papers that “there is no liberty, if the power of judging be not separate from the legislative and executive powers.” If judges had to depend on the “Executive or legislature” to keep their jobs, Hamilton wrote, judges would have “too great a disposition to consult popularity” instead of consulting “the Constitution and the laws,” and we could not expect the “inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice.” 

Politicians in Arizona and South Carolina would be well served by heeding those words. They’re as true today as they were when Hamilton penned them, more than two centuries ago.