Why Appellate Judges Should be Appointed and Not Elected

at the New York Times website is disturbing. She cites a recent Pew Research Center poll where people were asked the current chief justice of the United States. To make the result even more disquiting, the test was multiple choice. And here were the choices:

1. John Roberts
2. Thurgood Marshall
3. John Paul Stevens
4. Harry Reid

53% of those polled had no idea. 28% chose John Roberts. Thurgood Marshall came in second. That is the result from a poll where the alternatives to Roberts were fairly ridiculous. What’s more, that is the result of a poll involving the United States Supreme Court, which is ever in the public eye.

Now, let’s think about the current election for the Georgia Court of Appeals. Unless you work in the legal profession, have a case where an appeal is pending or is likely, or are a total news hound, you don’t hear much about the Court of Appeals. Yet, when you vote in November, you will have your choice of six possible candidates. The average voter will know as much about those candidates as I know about the choices for public service commission (I vote against anyone, by the way, who has a nickname that makes it onto the ballot in quotation marks. If you go by “buddy” or “skeeter” on the ballot, I’m not voting for you. The PSC race seems to attract people with nicknames)

Often, friends and family will ask me whom I would recommend for appellate seats and choices for other contested judicial elections. Perhaps others in Georgia ask lawyer friends to recommend a choice. But many will not.

Yet, the office of judge is such an important one and hopefully will continue to be in Georgia. Here is the point where I could switch to Public Service Announcement mode and talk about the need for voters to refrain from voting in races where they do not understand who the candidates are. But, instead, I am going to sound undemocratic and maybe snobby. People aren’t going to suddenly start researching judicial candidates.

Which is why I don’t think these decisions should be made by voters. At least initially. I believe an appointment system for open seats and perhaps either a retention election or an election against an incumbent after terms of 10-15 years would be best.

The current system is, at best, a crap shoot and at worst, favors people who have the good fortune of having a name beginning with the letter “A.” That person appears at the top of the ballot and has a big advantage in an election with multiple candidates.

A few years ago, John Grisham wrote a novel about a contested appellate judicial election where some powerful interests group chose a candidate for office. The groups then poured money into the election and ran it the way a candidacy for a higher profile office would be run. They got their guy elected easily.

That fictional story could easily become reality with candidates making “pledges” about what they will do when they get on the bench. Incumbent judges who follow the Constitution into unpopular places could also potentially come under fire.

That is, if the electorate pays attention.