The Untouchable Judges

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Perhaps the upheaval of judicial elections, thanks to a recent court ruling, might finally provide an excuse to decide whether we want our judiciary elected or appointed.

One could only hope.

You’ve already read how a U.S. District Court ruling has deemed unconstitutional New York’s system of electing state Supreme Court judges. (If you haven’t take a peek).

The 77 page decision by U.S. District Court Judge John Gleeson laid out a number of arguments for keeping in place the closed process of delegates and conventions for judges (arguments Gleeson ultimately rejected).

Among the arguments was this: The current system "insulates" sitting Supreme Court judges from voter retribution for unpopular decisions. The current system, the argument goes, gives the incumbent judge a level of independence from the whims of politics.

In other words, judges don’t have to act like common candidates. They don’t have to explain their actions… or convince a majority of the public that those actions were warranted.

It’s as if they weren’t really candidates at all.

They’d be like appointees. And political appointment of judges is hardly political, right? Just ask Samuel Alito.

This line of thinking reminds me of the arguments a few years back when the topic was whether judicial candidates should adhere to a code of conduct that keeps them from speaking about their views, their beliefs.

The Commission on Judicial Conduct, a state organization that enforces ethical standards on New York’s judiciary, mandates that judicial candidates aren’t to campaign in a partisan and political manner – only set out their qualifications to be a judge.

That became news in 2003 after an Albany judge challenged the commission for sanctioning him (check out the story here). Since that time, the challenge by Thomas Spargo, is losing as it goes up the judicial ladder.

But the bigger issue is this: Do we want these judges elected or not?

If they are candidates for office, why have an election that shields them from unpopular judicial decisions? Why is there a code of conduct that muzzles them from speaking about their views?

If we don’t want them to act like candidates – then don’t elected them.

If we want the voters to have a say, then can we please unshackle them?

Let’s stop with this hideous hybrid that serves no one.

Maybe this latest decision by the U.S. District Court will be the excuse for change. Judge Gleeson has mandated  that the New York State Legislature devise new guidelines for state Supreme Court elections.

Maybe the lawmakers will just call the whole thing off. Or maybe they will accept the wannabe judges as real, live political candidates engaged in a real live political campaign.

Maybe they will trust – just this once – that the public is smart enough to make up its own mind.