Voters should select, not elect, judges

By Steve Brawner
© 2015 by Steve Brawner Communications, Inc.

The recent admission of bribery by former circuit judge Michael Maggio is an example of why Arkansas should consider changing the way it fills judicial offices – still relying on average citizens, but not by using elections.

Maggio pleaded guilty Jan. 9 to a felony bribery charge and now probably is on his way to prison. He had reduced a jury verdict against a nursing home operator from $5.2 million to $1 million two days after receiving large campaign donations from the operator.

Clear-cut justice-for-sale cases like this are relatively rare, so let’s not overreact. The corrupt official was caught, so you might say the system worked.

The problem, however, isn’t so much the obvious cases of bribery that can be prosecuted. The problem is when judges are merely influenced. Who donates to judicial campaigns? Often, those who have an interest in the outcomes of judicial decisions in general, such as attorneys and nursing home operators.

Elections of judges and justices has always been the least democratic of all ballot races. Candidates aren’t supposed to discuss how they would rule on specific cases because a judge should remain impartial until hearing the evidence. Meanwhile, they aren’t allowed to run under party labels, which at least would give voters a sense of where they stand. Many voters are just guessing.

In the future, the problem may go from voters having no information to them having a lot of bad information. More and more, the waves of campaign dollars swamping the executive and legislative branches is engulfing judicial races. In some other states, ads by outside groups in judicial races are as nasty as the ads for other offices. It hasn’t really come to Arkansas yet, but when it does, it will change not only judicial campaigns but also the administration of justice.

Solutions? One would be for the governor to appoint justices and judges the way the president does at the federal level, subject to legislative confirmation. That kind of power bestowed on the governor might make some people uncomfortable, but remember that he or she would be held accountable by the voters. A personal example: In 2000, enthusiastic about no candidate, I decided while driving to the polls to vote for soon-to-be President Bush solely because I preferred the justices he would appoint over Vice President Gore’s likely selections.

There is another model. In American democracy, where do registered voters best collect adequate information in a deliberative fashion before making an important decision? Juries.

So let’s have “voter duty” where 100 (or some other number of) Arkansas voters are randomly selected, summoned to a location, and given two days to interview judicial candidates and study their records. The names of the voters would be withheld so the candidates couldn’t influence them beforehand. At the end of two days, the voters would select the officeholders and go home.

We trust jury members to make life-or-death decisions in capital murder cases. Why not trust registered voters to appoint judges, which they do now anyway through the ballot box? Wouldn’t 100 informed and focused average Arkansans do a better job than 1 million scrolling through a list of names on the ballot that they recognize only through campaign attack ads? Best of all, judicial candidates could avoid having to raise money from shady donors who want something in return.

So let’s have a selection process instead of an election process for judicial offices. Elections are a means to an end, not the end itself. The ultimate goal is a just, democratic society ruled by the people. To keep justice from being for sale, 100 people might accomplish that goal better than 1 million of them.

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