Friday, November 5, 2010;
THE TELEVISION ads were vicious. One featured the silhouettes of three convicted murderers boasting about their crimes and slammed an Illinois candidate for siding with such criminals "over and over again." Another falsely accused a Michigan candidate of preventing citizens from holding polluters accountable. A third pilloried Iowa incumbents for "ignoring . . . traditional values" and "the will of voters."
Although couched in partisan terms, the ads targeted not politicians but judges. And the attacks occurred in uncontested retention elections, which were intended to insulate jurists from the most distasteful elements of a political campaign. If they ever succeeded in that goal, they no longer do.
On Tuesday, Iowa voters kicked out three state Supreme Court justices who joined in a unanimous opinion nullifying that state's ban on gay marriage. Judges up for retention votes in Michigan and Illinois also were subjected to nasty, expensive and misleading attack campaigns, although they managed to hang on to their seats. Even positive ads in a low-key election can erode the legitimacy of the bench when they suggest that a judge deserves reelection because he reached the "right" result on a given issue - and would probably deliver similar results in the future. In some jurisdictions, judicial candidates run under party affiliation - an offensively obvious breach of the idea that judges should be neutral and free from any political agenda.
Thirty-three states held some form of judicial election this week, according to the Brennan Center for Justice and Justice at Stake, public-interest groups that follow such campaigns. Nearly $17 million was spent on television ads for these races. Such elections are a deeply flawed means by which to choose judges and should be discarded.
There are no perfect alternatives, but a merit selection system is preferable and would better shield judges from the most corrosive aspects of political elections. Governors could select a nominee who is then confirmed by the legislature. Judges could serve terms of 10 or 15 years before being eligible for reappointment, with the governor retaining the right to name a different nominee. Judges could be removed before the expiration of their term for infirmity or failure to perform official duties. But they should not be swayed by the political whims of the day, nor should they be made to think twice about making principled but controversial decisions for fear that they could lose their jobs.