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Sunday, October 23, 2005
PoliColumn: Selecting Judges in AL
By Dr. Steven Taylor @ 7:04 am

From today’s Mobile Register

To eliminate election politics, there’s a better way to pick judges
Sunday, October 23, 2005
Special to the Register

A plan has been floated by the Alabama Bar Association that could lead to a proposed amendment to the state constitution, altering the way appeals court judges are chosen in Alabama.

Under the proposal, voters would no longer elect the state’s appeals courts. Rather, a nine-member panel would suggest a list of three candidates per vacancy, and the governor would choose from this list. There would be no requirement for legislative approval of the nominations.

Each judge would be evaluated by an 11-member panel on a regular basis, and a report issued to the public. The judge would then be placed on the ballot in an uncontested re-affirmation vote.

The fundamental argument of the state ABA is that this will “take politics” out of the system.

This proposal has caused a substantial reaction from the Republican Party of Alabama, which opposes the idea. Twinkle Cavanaugh, chairwoman of the state GOP, has strenuously objected, stating that the proposal is anti-democratic.

On the surface, this would appear to be a quarrel between one group championing judicial independence and another that is fighting for electoral democracy.

Noble causes, both. However, there is a clear subtext that ought to be taken into consideration: The Alabama Bar Association tends to lean Democratic, and the judiciary is currently heavily Republican.

Therefore, it is hardly a surprise that the ABA isn’t happy with the current system, nor is it a shock that the Republicans would oppose reforming it, meaning that the debate is thick with party politics.

Placing that factor on the table, let’s evaluate the core of the institutional reforms being considered, focusing on the democracy angle.

On one level, it would seem that using electoral means to select judges is the best option. After all, shouldn’t the people decide matters of importance in a democracy?

However, there is nothing inherently anti-democratic about having key officials appointed to government. No one demands, for example, that the chief of police or the fire marshal be elected.

Indeed, there is a fundamental problem with the election of judges that we don’t always own up to: that even if one agrees that elections are best, the bottom line is that we, as citizens, don’t pay that much attention to who runs.

Most citizens who vote in judicial elections cast their ballots based on party affiliation alone, and that hardly qualifies as making a truly informed decision. This, of course, assumes that they vote at all.

Back in June of last year during the party primaries, in which voters selected nominees for Alabama Supreme Court races, turnout was abysmal. In fact, we set record lows in both the first and second rounds of the primary.

More mass evidence of the apathy we have toward these elections can be found in a poll conducted by the University of South Alabama in 2000, in which 80 percent to 85 percent of voters could not identify 11 of the 12 candidates for the state’s Supreme Court.

The truth of the matter is that most citizens will say they want the power to elect judges, but don’t really want to bother with actually exercising it.

Whenever the topic of judicial elections emerges and the cry for democracy rings out, I am always reminded of the time I was living in Texas and looking for information on an appeals court judge running for re-election. I called his office and requested campaign literature.

I was told that he didn’t have any, but if I called back later he would be happy to talk to me.

That experience has long resonated in my mind. If the candidate had no literature, and had the time to talk to one lone voter, it certainly must have been the case that his office was hardly being inundated with voters hungry for information about why he should be re-elected.

Granted, one anecdote does not prove anything in and of itself. But if we think about how little these candidates advertise, how little press they get and how little we, as voters, really attempt to make informed decisions as to their election, it is not hard to extrapolate that my story is representative.

Having said all of that, the ABA plan has some substantial problems. First, there is no such thing as “taking the politics” out of something so political as who sits on the bench. At the federal level, we have appointed judges; and one need look no further than the nomination of John Roberts to the Supreme Court to know that the idea that no elections means no politics doesn’t pass the laugh test.

Second, taking away the role of the Legislature to confirm executive appointments of significance would diminish the democratic dimensions of the process beyond that of removing the electoral component.

If the only elected official involved in the process is the governor, then the influence of the views of voters is radically reduced. Indeed, the views of roughly half the electorate at any given moment in time would have no influence on the process whatsoever.

I would propose a system wherein governors appoint the members of the state judiciary to fixed terms, and the appointments would have to be confirmed by the state Senate. From there, a review would be conducted at the end of judges’ terms (perhaps six years) and a report issued to the public, after which a retention election would be held.

Such a plan would allow voters to influence the process via the governor and their state senators, and would also allow any egregiously problematic judge to be removed by the direct vote of the people.

Such a plan, used in one form or another in a large number of states, would strike the balance between our general apathy toward judicial elections and our need to have input into that process.

Filed under: My Columns, Alabama Politics | |Send TrackBack


  1. But if we think about how little these candidates advertise, how little press they get and how little we, as voters, really attempt to make informed decisions as to their election, it is not hard to extrapolate that my story is representative.

    To the contrary, this is where the crux of the reformist argument lies. Alabama ranks first in the nation in terms of dollars spent on judicial elections. You can’t listen to the radio or watch t.v. during an election cycle without hearing/seeing vitriolic ads about the judicial candidates. There is, of course, a great deal of question as to just how effective such campaigning is with the general public which, as you rightly point out, is generally apathetic to judicial elections.

    The whole stated premise (and I emphasize the word “stated”) of the reformists is to de-politicize the process by removing the money — and thus the advertising — factor. This is McCain-Feingold on a local level, in some respects; let’s solve the problem with the elections by removing the anti-democratic, corrupting influence of money. We both know that doesn’t work, and any problems (real or perceived) should be addressed in a different manner.

    Comment by Scott Gosnell — Monday, October 24, 2005 @ 9:09 am

  2. The issue isn’t the comparison of advertisement to other judicial races, but the comparison to other offices. There is no doubt that, in their totality, judicial races get far, far less attention than other races for state office.

    And you are correct: the “get the money out ofpolitics” routine is tired.

    However, I still would prefer to see judges appointed with the voters having the chance to reject them on regular intervals. I have a hard time thinking that people make informed decisions ons in judicial elections.

    Comment by Dr. Steven Taylor — Monday, October 24, 2005 @ 10:00 am

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