In Connecticut, our judicial system is relatively flat: the lowest level is the Superior Court, followed by the Appellate Court, and then the Supreme Court.
Judges are nominated by the Governor from a list prepared by a Judicial Selection Committee and then confirmed by the General Assembly. They have to be lawyers. There is a certain amount of cronyism involved, no doubt, but there is usually a mix of Republicans and Democrats in each cohort. Judges get promoted in the usual way: a combination of good work and butt-kissing. They serve eight-year terms, and are generally re-appointed. You have to be a real jerk to be let go. This process is classified as a “merit system.”
Judges who retire, either voluntarily or because they reach the mandatory age, become senior judges, referees, or trial referees. (The distinctions aren’t that important for the purposes of this discussion.) Some of these older judges spend their time reading the paper and napping; but others are actively involved in the judicial process. We had one judge who was active until he was 101, and he was the go-to guy for handling difficult divorces.
There are also other others who are like baby judges. Depending on their exact classification, they might handle small claims cases, do fact-finding for a trial judge, serve as arbitrators, and so forth.
In any case, all of these people from top to bottom are appointed. Is there room for abuse in this system? Of course, as there is in any system; so why do I think this is better than electing judges?
We as a nation are now in the throes of an election season. If you are favorably impressed with the goings-on, then let me show you my outhouse that smells like roses. It’s bad enough what’s going on in the contests for representative, senator, and president; do we really want it to be that way for judges?
I believe, as all right- and left-thinking Americans do, that our government should be responsible to, and responsive to, their constituents. (By constituents I mean everybody, not just the ones that voted for them.) You might believe that they should follow the wishes of their constituency in every respect; I do not. Our government was conceived as a representative democracy, not as one big town hall meeting. The intent was that our representatives should devote more attention to the details of governance than the average person can, and that they should deliberate. If they take a position that annoys a sufficient number of their constituents, they won’t be re-elected.
Now, do we want our judges to be in the same position as our elected representatives? I said no, I said it in bold letters, and I meant it.
- I do not want judges who are afraid to make unpopular decisions, for fear of not being re-elected. If judges decide cases based on the popular will du jour, they are little better than lynch mobs in black robes. Presumption of innocence? not if the crowd is slavering for blood. Guilty? but he’s so good to his mother.
- We’re all familiar with the way candidates make promises on the campaign trail. You know the usual litany: create jobs, lower taxes, build a wall a mile high and a foot thick along the border with Cuba. Well, what kind of campaign promises could a judge possibly make? They’re supposed to uphold the law, aren’t they? What else should we expect them to do? Promise to find more people guilty? Raise revenue by imposing the maximum fines for speeding? If all the candidates for judgeship can promise is to uphold the law and decide cases fairly, on what basis can they compete? Would you vote for any candidate who promised something else?
- Then there’s the whole issue of conflict of interest. Campaigns are expensive. Where is the money going to come from? An honest judge will recuse himself from any trial in which there is a conflict of interest, but suppose Giganticorp gives $50,000 to every candidate in the race? (Corporations, organizations, and individuals often give to both parties, just to make sure their bread is buttered on both sides.) What would happen if you wanted to sue Giganticorp? Would every judge in the state have to recuse himself? Would you be facing a judge who took a big campaign contribution from the other side?
We here in Connecticut actually do have elected judges. We have a completely separate system, our probate system. This is the system that handles estates, adoptions, conservatorships, and things like that. Probate judges are elected, district by district, and there is no greater example of cronyism, cupidity, and outrageous behavior than our probate system.
We had a horrible example of an elderly man, visiting from out-of-state, being confined to a nursing home against his will, while a conservator was appointed before the family even found out what was going on. It took him months to escape, and the lawsuits are dragging on and on.
In another case, a probate judge overturned a will and appointed a business acquaintance as executor. The executor, in turn, cooked up some byzantine plot to donate the property to four different churches that would in turn sell it to a developer at bargain-basement prices (I think I have that right). The poor guy who was the intended heir is still whistling for his property while various lawsuits and criminal cases wander around looking for a home.
There are innumerable other abuses in the probate system, many of which go unnoticed.
There’s a cherry on top of all of this. It’s the election season for probate judges. Well, it seems there’s some back and forth about the ethics of accepting campaign contributions from lawyers. Some candidates don’t see anything wrong with it; some say they won’t do it; and some take the position that they won’t take contributions from lawyers who are likely to appear before their court. Since these probate districts cover only a town or two, it’s pretty likely that any local lawyer with a general practice is going to show up in his neighborhood probate court sooner or later.
So I have had opportunities to observe what happens when a judiciary is elected, and I don’t like what I see.