Marilyn Kelly, Clifford W. Taylor and Stephen J. Markman – if you know who any of these people are, please proceed to the winner’s circle. No one’s there? Not surprising. For those interested, the aforementioned are three of Michigan’s sitting Supreme Court justices. The fact that few, if any, members of the citizenry could identify these important decision makers illustrates why the hoi polloi should not possess the right to elect people to fill positions like the ones held by Kelly, Taylor and Markman. However, this opinion is countercurrent to that of the general electorate’s majority, which feels that justices should be chosen in the same fashion that is used to elect presidents and congressmen.
Well, if so many people feel so strongly about the right to elect judges, we request that everyone take a moment and recall who they voted for in this month’s elections. Can’t remember? Not surprising. But, don’t feel ashamed or embarrassed because neither can we, and, plenty of people can’t even remember within five minutes of pulling the levers or pushing the buttons for whom they voted in more salient races like those for U.S. Senate.
Given that voters have such limited recall of political knowledge, one could plausibly extrapolate that the same ignorance would also preclude the retention of crucial information concerning the judicial system. This presents a paradox, therefore, between the electorate’s desire to vote for judges and their inability to make informed choices.
State-level judges, like their national counterparts, should be appointed. There are far too many legal processes and details that the general public cannot grasp. Accordingly, they cannot accurately assess what makes a good justice. Law students and scholars excluded, who can explain what a motion for summary judgment is and when it is appropriate to request one?
The esoteric nature of the judicial system aside, what makes this nation’s current procedure even more asinine is how judicial campaigns are run. Out of the 39 states in which citizens elect judges, eight of them prohibit justices from disclosing their personal opinions on political issues. Such statutes deprive the electorate of necessary information concerning how the justices would decide cases and leave voters without appropriate criteria with which they can evaluate the candidates. This forces the populace to make crucial decisions based upon a Law and Order conception of the legal system.
Assume for a minute that in each state, the power to select justices would be placed in the hands of elected officials rather than the electorate. This new responsibility would potentially require those in power – governors, senators – to more thoroughly consider the desires of their constituents since no longer would the uninformed will of the people influence judicial placement. Instead, representatives of the people would be forced to ask who their constituents would want sitting on the bench. Skeptics surely would assert that such a change would transform judicial appointments into another arena for partisan wrangling. While dreams of making the courts ideological bulwarks would surely tempt many politicians, the increased scrutiny would also foster debates that yielded the most qualified candidates. Prospects of thoughtful discourse resulting in sound appointments make the blind selections that result from the present system seem misguided.
Back to reality. Even in the states where judges are not banned from expressing their opinions, most people are not politically active enough to receive all the information, let alone a significant amount. Acknowledging this disappointing truth is not meant as an indictment of the electorate, though. Rather, between limited and biased media outlets, the demands of pressing needs like going to work and raising their families, and interest in other pursuits, many voters don’t have time for election news. Especially not generally ignored races like those for judicial positions. In the rare case when a regular citizen does take an interest in the judicial race, are they expected to look at a judge’s past performance? How can a normal citizen be expected to fully grasp the components that factor into an ostensibly mundane decision?
Hopefully, this exploration of voting process will not be misinterpreted as an assault on democracy. The issue at hand is whether normally disinterested voters should be deciding the fate of our justice system with limited information. Even the most politically sophisticated members of the population are unqualified to assess a justice’s merit due to the legal system’s complexity and nuances. In this instance, bad choices are more harmful than not having the opportunity to make them.
Taymour is an LSA freshman and Litman is an LSA senior. Both writers are members of the Daily’s editorial board.