Unless you've been living under a rock for the past 18 months - during which time the presidential campaign has seemingly been running non-stop - today is Election Day. For better or worse, the country will elect a president - though I anticipate that a winner will not be called until the early morning hours, or God forbid, the outcome will remain contested in the days to come with the apparent losing candidate refusing to acknowledge defeat. Meanwhile, as the dust settles, the national conversation will pivot toward the 2016 presidential election and speculation as to the next crop of likely candidates will begin. Topics such as whether Hillary Clinton throw her hat into the ring again, or whether Marco Rubio is ready for the big stage, will be a source for endless discussion on evening cable TV talk shows.
These are all interesting issues for discussion, but the more relevant election day topic for me is one that bears directly on my practice - that being the issue of judicial elections. Stepping into the voting booth, I saw what had to be a dozen openings on the judiciary. I recognized all the names from the signs lining the major roadways in the county, but had more than a passing familiarity with only one candidate: an incumbent I have appeared before on numerous occasions throughout my career. Other than that, the rest were unknowns.
I oppose judicial elections. However reluctantly, we all accept the reality that our elected officials, whether they be congressmen, presidents, senators, assemblymen, etc.. have constituencies. The law and order Republican must pander to the police unions and the "I fight for the working class Democrat" must kowtow to the labor unions. Until someone finds a better form of organizing society other than republican democracy, lawmakers will have to assemble constituencies in order to successfully drive through their legislative agenda. Quite simply, this is the reality of (small "r") republican politics.
Why, then, should this be the case for the one branch of government that should keep a healthy distance from the often tawdry world of politics, and whose job is often to clean up the mess our elected officials leave behind? When a District Attorneys oversteps the bounds of his office in prosecuting an alleged cop killer, do we want the law and order judge, who secured a police union nomination on his path to victory, to preside over the matter? Do we want the judge whose election resulted from the support of several powerful labor unions to preside over labor disputes? I think these questions answer themselves.
I don't imagine a world where judges magically shed their biases and leave them at home. As individuals, judges bring with them their lifetime of experiences to adjudicating disputes. A former prosecutor, for example, will view criminal cases in a different light than would the veteran public defender, sometimes in ways you might not expect. But, judicial elections fail to pass what I call the gut check. Quite simply, it does not sit well when a public official whose job description is to serve as a neutral arbiter has more than a minimal amount of loyalty to a politically powerful group.
Judicial appointments, itself a political process, are not a perfect system. Even so, they are less political than the electoral model, and though I am loath to give Mayor Bloomberg credit in some areas, I must give him and his predecessor Mayor Giuliani credit for establishing a relatively political-free process in their judicial nominees. Their nominations arrived to the bench from varied backgrounds. Some were lifelong prosecutors while others were veteran public defenders, corporate attorneys, law clerks, or solo practitioners. I can only recall a few instances where the mayor elected not to reappoint a judge, and in those instances, there was a broad consensus that individual was unfit for office.
Perhaps New York City's appointment system should serve as a model for other jurisdictions. I don't pretend to know the answer. Indeed, there are many experts who have studied this issue much more closely than I have. But, I have to think there is a better way of selecting judges for office other than the current electoral model. Something for lawyers to think about on this Election Day.