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Unaccountable for life

COMMENTARY | May 27, 2008

Is appointing judges a better alternative than letting the public elect them? George Lardner, Jr., takes issue with a New York Times article that seems to argue that the failure of the media to cover judicial issues is reason enough to scuttle elections in favor of out-of-sight, out-of-mind appointments.

By George Lardner, Jr.

The New York Times published a deeply researched article on its front page Sunday about the strange habit in this country of electing judges when the rest of the world relies on appointments by various means. In some countries, the chief executive alone makes the choice, in some the executive does it with the help of an advisory commission. In others, legislatures make the appointments, while yet others rely on career professionals selected by rigorous examinations and school programs.

The article offered a few favorable comments from those who see merit in popular elections, but the bias in favor of appointing judges -- who usually remain accountable to no one for the rest of their careers -- was obvious. It began with a horror story, about an elected judge in Wisconsin defeated for re-election in a bitter campaign by a small-town trial judge who falsely suggested in a TV advertisement that the defeated judge, the only black on the state’s Supreme Court, had helped free a black rapist.  Predictably, the lengthy article ended with a lengthy reprise -- nine paragraphs in all -- on the same outrage, without any indication that there might have been other issues in play, or any assurance that there were no other issues.

The false attack was, of course, deplorable. But the article was completely devoid of any example of outrageous conduct by appointed judges. That isn’t hard to find. All you have to do is visit a courthouse for a few days or less -- any courthouse where appointed judges have the gavel -- and sit and listen. But if you do, you will look around in vain for any reporters taking notes. They aren’t there.  And unless it’s a high-profile case in downtown Manhattan, the New York Times isn’t there either. And if it -- or any other newspaper or broadcaster -- is there, it won’t be challenging the judge’s rulings or writing about his or her abuses of power. It will be sucking up to the judge or his aides, or both, looking for tips about how the case is going and what’s coming up next.

The most ironic theme of the Times article, however, was its emphasis on political scientists who “say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.”

Say what? Who shortchanges the voters?  Who ignores real news coverage and lets trivia control the headlines and the evening news? Why should the failures of the media be a major reason to scuttle popular elections in favor of out-of-sight, out-of-mind appointments?  And if the voters have little but trivia to guide them, then why should they be empowered to elect a president, or members of the House or Senate?  Let’s have the Supreme Court appoint them all -- if we could first elect the members of the court.  The failures of our judges, elected or appointed, are the failures of the media that let them get away with their disgraceful conduct and then blame the “system” for ignoring it.

Personal disclosure:  My youngest daughter, Kristin, was murdered in 1992 by a young man under court order to stay away from her and whom the courts repeatedly let off the hook. I’ve covered courts and trials for more than 40 years. Those of us who have done that know that judges are the least accountable of public officials and they act that way. With payrolls being thinned, there aren’t that many courthouse reporters left but how many of them, print or broadcast, have ever told their readers which judges they cover are worth their salt and which ones are not?

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