The selection of judges is one of the flash points of democracy. How we select judges is critical in determining the quality and independence of the judiciary. Most of us would agree that we want a stable, independent, well-qualified judiciary that is reflective of the community but will not be influenced by public clamor and contention. Judges need the courage and security to be unpopular when the law requires it. We also don’t want judges to be political appointees expected to do the bidding of power brokers who put them in office.
But elections are no guarantee of separating the qualified from the unqualified. Judges are typically the unknown candidates. Most voters look down at a ballot and then select the name that seems vaguely familiar. Judges shouldn’t be elected by voters who have no knowledge of their competence or temperament and who elect and re-elect them blindly. This past November in Ohio two justices of the Supreme Court were elected — William O’Neill and Sharon Kennedy. How many people actually knew anything about these judicial candidates when they voted? Precious few. But what comfortable, familiar names they have.
In Ohio, we proudly elect our judges. Or so we say. In reality, many judges reach the bench by political appointment and then are retained by an uninformed electorate. They are selected before they are elected. We don’t need either politically appointed judges or blindly elected judges.
“Merit selection,” beloved of editorial writers and law professors, is not the answer. Two times in recent history, proposals have been put before the electorate for eliminating the election of judges. Both times the proposals failed. The political reality is that people want to elect judges. Perhaps what we need then is a process that will give us the best judicial candidates.
The independence of the judiciary is one of the linchpins of our constitutional system. It should not be undermined to serve the interest of partisan politics. If we are going to continue to elect judges, how can we weed out the uncommitted and unsuitable to increase the chances that the capable and competent can get the job? We should make the judiciary a true professional calling. How do we do this?
First, consider the current requirements for becoming a candidate for judge. You must be a licensed Ohio lawyer with six years of experience. That’s it. You don’t even need experience practicing law. Just keep your law license current for six years and you, too, can be elected judge.
Many people are surprised when they learn this. Of course, when just any lawyer can be appointed or elected to the bench, there is no way to screen out the opportunist or the incompetent, especially if such an individual serves the interests of the political party that makes the selection.
We have politicians who run for judge without any commitment to the judiciary or any understanding of the special demands judicial service requires. These profiteers use name recognition as a tool simply to stay in public office. The ignorance of the electorate makes this both possible and profitable. The courts should not be populated with judges who were former legislators or other elected officials and who retire onto the bench or are biding time before going back into the partisan political arena. No one wants a judge who is making decisions with one eye on their next political office.
But what if just any lawyer can’t be appointed or elected? Suppose only a small pool of specially trained, experienced and temperamentally suitable people can be deemed qualified for the judiciary? These individuals would be required to demonstrate a commitment to public service early in their legal careers and be diligent in pursuing the rigorous qualifications necessary.
Public service as a judge requires a different way to understand and use the law. Lawyers are trained as advocates. They are to advance the interest of their client and seek to “win” against a clearly defined adversary or, alternatively, to find a way to use the law to benefit their client in achieving a result. Judges don’t do that. Good judges don’t advocate a position or seek to advance an agenda. Impartiality, neutrality and disinterest are the touchstones for the ideal judge. The outcome is not the purpose — the process is.
We should require special legal training in the skills of judging for candidates for the judiciary. Course work to learn competence in applying legal principles, writing opinions and conducting fair hearings should be offered in post-graduate work for lawyers who want to make the judiciary their career. An examination should be conducted to pass the “judicial bar.” Character and fitness should be carefully examined to help determine those who may not be suited to the work required.
Once qualified with judicial education, potential judicial candidates should be given positions as magistrates, hearing officers, and mediators to develop the skills that only experience can teach. These judges-in-training can be observed and tutored by others with experience who can mentor them and help develop the qualities that promote excellence.
These trained and seasoned individuals will then be the only ones qualified for appointment or election to the bench. Individuals may choose to undertake this training after several years of practicing law or upon graduation from law school. They will self-select with no barriers of race, creed or gender. It will no longer be possible for the jack-of-all-political-trades to be a judge. Nor will it be possible for any lawyer with the right connections and “good” name to be appointed or elected to the bench. Setting the qualifications for the judiciary can be accomplished by the legislature without changing the Ohio Constitution. All it takes is legislators who want qualified, independent judges.
Whether these qualified individuals are ultimately appointed or elected, the public should have greater confidence that the integrity of the judiciary has not been compromised in the selection process. Commitment and merit should be the prerequisites for the title of “Honorable Judge.”
Bond is a retired Summit County Common Pleas Court judge.