Judges: Appoint Don't Elect.

Going to the polls this week reminded me of one of my most deeply held beliefs: It is stupid to elect judges.

The job of a judge is fundamentally different from the job of a politician. It is a legal role, not a political role. They are there to adjudicate, not to represent the interests of a particular constituency. They ought not, therefore, be chosen in the same manner that politicians are chosen. Here's the deal people. There are exactly two qualities of a good judge: intelligence and impartiality. Stupid and biased judges aren't just scary for the parties in their courtroom, they are a tax on the entire economy, making it more difficult for businesses to plan their affairs in accordance with known and predictable rules which will be fairly and predictably applied.

Judicial elections do not lend themselves to choosing intelligent and impartial people. There is little relationship between a person's intelligence (especially in the specialized area of legal analysis) and a person's ability to get elected to political office. I don't mean that as a cheap shot against politicians. I am just saying that different skill sets are involved. But more importantly, there IS a relationship between impartiality and running for office, and it's an INVERSE relationship.

If you are ever charged with a crime, or if your home is ever the subject of a request for a warrant, how would it make you feel to know that the Judge who hears your case has sought and obtained the endorsement of a law enforcement agency? Would you perhaps feel at least a little bit better if that was NOT the case, and you had reason to believe that an at least ostensibly unbiased judge was involved, who would attempt to rule in accordance with the facts and the law? Or if you were ever in litigation with one of Southern Nevada's major economic players, MGM-Mirage say, would you be comforted knowing that the Judge had obtained a major campaign contribution from that other party to your case? Perhaps the largest single donation of all? Or had had an election party hosted at one of MGM's venues? Since judges are (bizarrely) allowed to ask lawyers for campaign contributions (and do so), would you ever be interested in knowing whether your lawyer or the other side's had contributed more? Of course you would be.

Don't get me wrong, we have some fine judges in Southern Nevada, most of whom dislike the system as much as the attorneys do, and who do their darndest to be impartial notwithstanding the inevitable appearances of impropriety which the system creates. But we've had our fair share of lemons too. My first legal job was as a law clerk to the Nevada Supreme Court. I arrived shortly after a judicial election between Judge X and Judge Y. Both judges had been evaluated by a poll of local attorneys. Judge X had received among the lowest retention ratings in the survey and Judge Y had received the highest. But Judge X won the election because of political factors that made Judge X a better candidate, including factors having nothing to do with ability and competence. I later tried a jury trial in front of Judge Y, and even though he felt I'd done better with the Jury than I should have, I have to admit that he was otherwise intelligent and impartial. Our State would have been better served by his ascension to the high court than that of his opponent, in my humble opinion.

And let us not forget the blessedly short judicial tenure of Judge Halverson, whose election to judicial office, followed shortly thereafter by her removal from the bench for sleeping through trials, inappropriately engaging in ex parte contact with jurors, demanding that her bailiff massage her feet, hiring her own armed bodyguards and allowing them unauthorized access to the courthouse, and the like, should have, once and for all, laid to rest the claim that the Nevada public is capable of selecting judges.

There's a reason that sophisticated parties who have grounds to do so routinely seek to remove their Nevada cases to Federal Court: the Judges are appointed not elected and, on average, are just . . . better, and more predictable. I had this conversation just last week with a national company looking to hire a new Nevada attorney. They have a standard practice here: remove to Federal court, where we can be in front of an appointed judge not an elected politician.

I understand there are dangers and temptations and I complain about the misuse of judicial review in Federal Courts as much as anyone, especially on highly politicized claims and controversies. (See my post on this blog about what Sonia Sotomayor has in common with Lance Armstrong.)  But an independent judiciary is an essential feature of a constitutional republic. It just is.

So why don't we have an appointed judiciary here in Nevada, with a Missouri plan that allows them to be subjected to a no confidence/retention vote once every few years, to prevent against obvious abuses? One big reason is the Las Vegas Review Journal and other news and media outlets, which rail and editorialize against the idea every time it comes up for a vote. But why is that? Could it possibly be due to the RJ's vested interests? Think about it. For newspapers, an elected judiciary is a win, win, win, win situation. Elections mean ad revenue, which is core to a newspaper's very survival. Elections mean controversy and mudslinging and give reporters something to write about, which is essential to a newspaper's reason for existence. And since most voters have no idea who to vote for in judicial elections, judicial elections give newspapers power, as their judicial endorsements become much more important than in partisan political races. That power also translates into another "win" for newspapers: power in litigation. Would you want your defamation lawsuit against the RJ to be determined in front of a judge hoping for that newspaper's endorsement in an upcoming election? But that gets me back to my original point.

Next time there's a ballot measure to move Nevada into an appointed judiciary system, please, please, please ignore the Review Journal, and vote for sanity. We don't want our judges to be politicians, so we should stop electing them.