10 June 2009

What Would Be the Ideal Way to Choose a Judge?

Monday, on CrimLaw Live, I went over the different ways in which judges are selected: the federal method, the direct election method, the legislative election method, and (quite possibly the worst of all worlds) the Missouri method. I've been mulling it over and I think I've come up with what I think would be the perfect system for initial selection of trial judges: ability testing. What do I mean by ability testing? Well, I mean that we actually set up a testing system with three components - a written test, peer evaluation, and a board - all of which add up to 1000 points and rank candidates.

Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame). Tests should be specific to the type of court the candidate wishes to be a judge in; for instance, a candidate in Virginia would have to choose whether to test for Juvenile and Domestic Court, General District Court, or Circuit Court. However, they should cover the breadth of those matters covered under the jurisdiction of the specific court. The test should not be a test for the ability to advocate; it should be an ability to restate the black letter law. This test should max out at 500 points.

Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate's demeanor, perceived knowledge, and ability to communicate. A series of questions should be asked on something like a 5 point scale per question: 0=absolutely unfit, 1=unfit, 2=do not have enough information to make informed decision about this candidate, 3=average, 4=above average, 5=excellent. These replies should be tallied and averaged and make up a maximum of 250 points.

Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices - preferably not not even from the same half of the State - and should not know the lawyer. This board should probably only take place after it has been determined that there will be a judicial opening. The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge. This should be scored at a maximum of 250 points.

At the end of this process there is a list of attorneys vetted for the judicial position and their levels of qualification: John Smith-874, Kerry Jones-810, Mike Greene-753; Paul Perry-735; & Mary Madre-710. The top scorer could automatically be made the judge or the names of the top 3 could be forwarded to either the Legislature or Governor with a mandate that one of the three be chosen within 30 days or the position defaults to the top scorer.

What's the advantage of all this? First of all, it has the best chance of any system I've seen of guaranteeing that the person elevated to a judicial position is actually qualified for it, both in terms of actual knowledge and the social abilities needed to be an effective trial judge. Second, it actually allows the judiciary to be an independent third branch of government. Every part of this system can and should be operated by the State Supreme Court. The politics involved in local good-ole-boy committee choosing, or a governor choosing or a legislature choosing or a party boss choosing who will be the judge will be pruned away by this system.

Of course, there needs to be some sort of reappointment system. This could be the Missouri "life tenure lite" system wherein the citizens vote "yes" or "no" every so often as to whether to retain a judge. Personally, I think this is a terrible system unlikely to remove the few bad judges who get through the selection process above or who develop a god-complex over the years. I prefer some sort of legislative check. When time comes for reappointment have the House do a simple up or down vote on Juvenile and domestic judges. Have the Senate do up or down votes for general district court judges. For the superior trial court the barrier to removal should be higher, perhaps a down vote by both houses. In any case, should a judge be poor enough that he is removed, he would be barred from the position and the judicial branch would provide a replacement as spelled out above. I think that this would eliminate much of the politics since the legislators would not be able to remove judges to replace them with their buddies or members of the legislators' party. It would give those who have issues with a particular judge a place to go for redress and allow the legislators some input as to how the laws they have promulgated are being enforced (for instance, the Legislature could remove a judge who refuses to enforce the anti-snipe hunting laws).

All-in-all, I think it's a better system for selecting judges than I've seen anywhere. However, I doubt we shall ever see its like.


Windypundit said...

Here's a tweak I like: I've previously floated the idea of assigning, say, a 3-judge panel to each trial and allowing each side to to bump one judge from the panel, so trials are always conducted by a judge who neither side sees as most objectionable.

You could probably then set some threshold where, say, any judge getting bumped more than 90% of the time over a 3-year period is removed from the bench. Or just remove the top 5% most-bumped judges each year.

There's probably some way to extend this to the appellate levels.

Ken Lammers said...

I've heard of a similar system (which I believe is in operation in certain places, but not in Virginia) called "papering." A judge is appointed and either side can "paper" him, removing him without stating a reason and having another judge assigned. Each side can do this once, giving each an opportunity to remove a judge they perceive as poor.

John V. Siskopoulos said...

I do not know the best system for selecting a judge. However, judges should be consistently scrutinized by active counsel who give feedback on the judge's performance. Any judge that continually receives low marks should be removed from the bench.