Former Judge Vanzetta Penn McPherson wrote an op-ed piece last month for the Montgomery Advertiser, one that was both timely and quite instructive. Judge McPherson believes it’s time to take politics out of the selection of judges. I believe an overwhelming majority of Alabama citizens share her opinion.
The resignation of Alabama’s chief justice because of the cost of judicial elections, among other reasons, is yet another clarion call for consequential reconsideration of this state’s process for selecting judges. In announcing her resignation, Chief Justice Sue Bell Cobb expressed her preference that judges be appointed or elected in retention races. Many prominent Alabama lawyers share her belief that partisan judicial elections “perpetuate the public perception that judges are selected more on campaign contributions than on ability.” Her concerns are valid.
But the cost of elections, while shameful, is not the primary reason for rejecting the popularity contest that every judicial candidate must win before donning a black robe. A merit selection process is preferable for any public servant who qualifies to hold office via academic status and is expected to approach her responsibilities with empiricism and fulfill her responsibility based on objective law. Governors and legislators represent constituencies, political parties, ideologies, and supporters. No one is surprised when a governor appoints a former law partner to a position or a prominent party official to a cabinet post. Legislators are expected to speak from their constituents’ points of view and to propose bills that reflect their interests. The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.
Not so judges. Judges may not favor interest groups, and their party affiliation, personal beliefs and ideologies should not determine their rulings. Litigants should have no defensible expectation of prevailing before a judge based on the aforementioned considerations. However, in Alabama, judges are elected — and many serve – based on political party affiliation, campaign budgets, the candidate’s wealth or race, and church membership. It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.
Why is a judge’s calling so antithetical to popular election? Because, as the chief executive officers of the courts, judges are required to possess college degrees, juris doctorate degrees and law licenses. Presumptively, they are academic achievers with sufficient experience at the bar to understand and analyze intricate legal issues; appreciate the legal precedents that determine adjudications and the public policies that inform them; understand relationships among lawyers and clients sufficiently to manage those relationships reasonably and productively; manage legal proceedings, including discovery, trial, and alternative dispute resolution; supervise chambers and court personnel who perform tasks requiring expertise; write opinions that are clear, fluent, binding and reasonable; and conduct judicial proceedings ethically, temperately, and with due regard for the integrity of litigants, jurors, and the public.
The codified qualifications for judges in Alabama contravene these legitimate concerns. A lawyer between 18 and 70 and licensed to practice in Utah for five years could move to Montgomery one year before an election and qualify for a circuit judgeship. If licensed to practice for ten years, that same lawyer could qualify for a Supreme Court judgeship.
Until January 2009, there were no experience or minimum age requirements for judges. As a result, during the partisan campaigns that precede judicial elections in Alabama, typical television ads are more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.
It is a difficult truth: Recommendation from an informed judicial selection commission is a more responsible and credible way to select judges than the subjective, often unknowing, and random preference expressed by voters at the polls. It is also in the public’s best interest, since ultimate appointment by the Governor preserves the chief executive’s authority while assuring that the public is served by highly-qualified candidates with the expertise and experience to render important court decisions.
In a 1971 opinion, the Alabama Supreme Court said that the purpose of the state’s Competitive Bid Law, which applies to maintenance workers and contractors, among others, was “to get the best quality equipment at the lowest possible price.” What a shame that we don’t hold our judges similarly accountable.
Judge Vanzetta Penn McPherson
The Montgomery Advertiser
August 5, 2011
It will be interesting to see if the Governor and the Legislative leadership agree that politics should play no part in the selection of judges in Alabama. Most all lawyers in Alabama believe there is a need for a drastic change in the selection process for judges, especially at the Appellate level. I also believe the general public shares that belief. The people of Alabama deserve a change and I believe they would overwhelmingly approve merit selection if they were the decision-makers. But the ball is squarely in the court of the elected decision-makers. Hopefully, they will put politics aside and do the right thing!
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