Justice Requires Impartial Judges, an Impossibility in a Two-Party Duopoly
Evidence of judges serving as the bearers of partisan desires is rampant at every level of our justice system.
Rich Vial is a former Oregon State Legislator, former Deputy Secretary of State and founder of the law firm Vial-Fotheringham, LLC. He provided legal assistance to hundreds of Homeowner Associations throughout the West for four decades and has always had a passion for how communities organize and govern effectively.
As rancor within the two political parties heats up, their increasing willingness to “win” at all costs continues to seep into all of our society. The two-party duopoly of our political system controls our public dialogue and turns what should be collaborative concerns into divisive debates. Nowhere is this more apparent than in the discussion about judicial independence.
Evidence of judges serving as the bearers of partisan desires is rampant at every level of our justice system. At the highest court in the land, the cry for expansion of the number of justices on the Supreme Court is based clearly on a desire to “balance” a packed court by simply repacking. In lower courts many of the judges who deal with everything from traffic to neighbors fighting over a fence line, are subject to elections that inevitability bring in partisan animosity and ideological bias. Nothing will undermine the confidence of a society in the concept of justice more than a sense that the judicial system is biased or subject to partisan influence.
The root of this problem is the control of the duopoly over the processes which result in the placement of our judges. The parties use these levers to maintain their duopoly and to ensure that their partisan goals are advanced in every branch and level of government. It’s all part of a win-at-all-costs approach to politics.
Judges are either appointed (by usually the governor), or elected. Some states lean more toward the appointment process, and others favor elections. However, even in those jurisdictions which have an election process, appointments to fill vacancies are the rule, and, once appointed, most judges are likely to be reelected as incumbents. Both systems have been criticized for failing to produce judges which are truly independent.
The role of a judge is to interpret and apply the law, not to make law. No one can dispute however that the “law” is shaped by its interpretation. For example, what one judge regards as “in the public interest” will inevitably differ from their colleagues and be informed by their ideological preferences. Escaping this human reality is impossible. And therein lies the problem of partisanship as it applies to judicial selection: are we looking for judges who are independent, or judges who are accountable to those who selected them—either an elected official or the voters?
This question of judicial independence versus judicial accountability is currently answered clearly in favor of accountability as evidenced by the processes played out all across the nation. Judges selected by governors are only approved after the governor has thoroughly ensured the nominee will generally rule in a way that aligns with the governor’s preferences. Similarly, voters typically do not assess the caliber of a candidate’s statutory interpretation, but rather the extent to which they share desired political outcomes.
Perhaps we want the “accountability” factor to be predominant. After all, the courts seem to handling bigger and bigger questions these days and our legislative branches seem unable to answer them, so it may be best to make sure judges are more akin to political actors than the unbiased umpires which our Constitution envisioned. Both the electoral process and the political appointment process are somewhat effective in producing accountability—i.e. judges that will reliably side with the politics of their respective appointer(s). However, the political process, with the “majority” party at any given time in any given place representing only about a third of voters, is arguably less likely to effectively select judges whom the majority of folks are likely to be happy with their views. Elections can only identify the preferences of those who voted and those who vote tend to be more partisan and more likely to belong to the two major parties.
The two-party duopoly is at the core of the destruction of “E Pluribus Unum” (out of many, one). Our leaders divide into “teams” called caucuses, and seek to divide the rest of us as well by demonizing those on the other team. This certainly extends into the realm of judicial selection, and as a result has had a dramatic impact on our deepening national divide. In this partisan world, candidates for any judicial position are forced to take pledges on certain stances rather than pledge to remain faithful to the impartiality at the core of a strong judicial branch.
So, what is the solution? If you’re opposed to governors playing a role, maybe you think we should go back to strictly electing of our judges? In the present environment, that would do nothing to help. Nowadays, even “non-partisan” offices are increasingly subject to vigorous campaigns by party machinery. A party apparatus doesn’t waste a chance to use “farm team” offices, like school board and county commissioner, to provide up and comers for other elected partisan offices.
Is there even a solution? Even the most “independent” judges will still be informed by their political persuasions, philosophies, biases and prejudices. That sort of bias is inevitable if we continue to use human beings to act as our judges. But, if we seat judges appointed by a more moderate, less divisive and less extreme political body using a merit-type system as described below, we can begin to regain confidence that the system is not “rigged” to favor one political philosophy over another as an institutional reality.
This brings us full circle to the argument that it is time to take back control of our society from the two-party duopoly and restore the vision of founders like George Washington in a “by the people, for the people” system of government. The control of the only two political parties which have any meaning in American life over every aspect of our lives must stop before we can achieve such a restoration.
As we observe the death of a system that has served us for nearly 200 years, we are of course anxious about that loss. However, we can take heart in the idea that a system controlled not by the party in power, but by the collective will of the people will inevitably produce leaders who will embrace a method of choosing judges that can restore our faith in the judicial system.
To allow our system to continue in the modern era we must start by wresting control of voting from the parties. Open primaries with non-partisan elections for all of our leaders should become the rule. Once elected, we cannot allow our leaders to segregate by “party” into caucuses that control every aspect of a legislator’s experience from election to voting. This simply sets the example for all of us to further divide. Secret election of leaders by legislators will avoid some of the problems that loyalty demands create, and committees chosen by the body as a whole are much more likely to reflect individual competence than party purity. All of these things both set an example for the rest of us and at the same time moderate our dialogue to the point that we may actually get something done. Moreover, this de-prioritization of party will make nonpartisan processes related to the judicial branch easier to adopt.
A merit selection, which involves vetting by a panel of professionals and executive appointment to a first term, followed by retention elections, has yielded the most judicial independence. It is currently employed in about 20 states, not including Oregon. In our state, the Governor typically listens to various groups, but ultimately has sole authority to make the appointment. Even panel vetting systems, however, are not immune to partisan influence. Panelists are themselves typically appointed by a political authority or body, which means their selection is based on their partisan views more so than their ability to review candidates. But if we first solve the question of electing more mature, moderate and thoughtful politicians, the merit system promises good results.
We have been fortunate to find that many great men and women have served us as judges often in spite of our lack of a perfect system. In his groundbreaking book on judicial selection, Jed Shugerman of the Harvard Law faculty notes in “The People’s Courts” that, over 250 years, various judicial selection methods have arisen, succumbed to inevitable corruption, partisanship or economic pressures, and fallen, in largely cyclical fashion. Perhaps again that is a result of a political system which George Washington warned would eventually tear us apart if taken over by political parties.
If we want a judiciary that is accountable to the controlling partisan sector of our society, then increasing our Supreme Court from 9 to 13 or 15 may be just the ticket. But if we want true judicial independence, then we need to start with a political system that has the capability of running less like a sports franchise and more like a thoughtful deliberative policy body. Especially when it comes to fostering an impartial and independent judicial branch, we need to insulate our judicial selection process from the decaying and degrading influence of partisanship.
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