This would require all judges to appear on the ballot for a “certification” election after six years, where they’d have to receive a majority vote to stay on the bench. Like I said, bad idea.
UPDATE: After far more “debate” (in which everyone agreed) than was really necessary, this lousy proposal has been soundly rejected by a vote of 4-189. Good riddance.
Please share widely!
peter-porcupine says
They should be term limited entirely instead – ten years or death, which ever comes first.
andrew-s says
If they commit to ten years, they should serve ten years!
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đŸ™‚
bob-neer says
So many just apply the Dead Hand of the Past to their judgments …
peter-porcupine says
..it’s my fabled leniency shing through again.
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BTW – the Dead Hand you refer to isn’t Learned Hand, is it?
bob-neer says
Actually, but good guess đŸ˜‰
peter-porcupine says
Are you a judge?
rollbiz says
You’re an offensive idiot…Or, more likely, people don’t understand how to use the rating system.
ryepower12 says
happen to like the idea. 10 year term limits sounds pretty good. If they’re a really good judge – and not too old – they could always be reconfirmed (I wouldn’t be opposed to that) or even promoted.
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So, I gave you a 6 to make up for whoever gave you a zero lol.
bob-neer says
We should elect all of our judges every few years. Appointment of the judiciary is a relic of the aristocratic antecedents of our system. It is elitist and anti-democratic. It is comparable to indirect election of the federal President (gone), indirect election of the federal Senate (gone), and restrictions based on race, gender and class for voting (gone, gone and gone). It is out of step with history. Power to the people!
peter-porcupine says
Bob – judges should be judges, not political animals. That said, I DO think the lifetime appointment is bad, and opt for ten years, dead or alive.
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(BTW – we DO still have indirect election of the President – it’s called the Electoral College – just isn’t legislatures any more).
bob-neer says
That’s perhaps a decent compromise. I stand by my assertion that the direction of history is for our system to be more directly democratic rather than less, and that appointment of judges is out of step with that basic philosophy. As to the Electoral College, what you write technically is true, but the electors these days are required to vote as instructed: they don’t, or aren’t supposed to, exercise their own judgment when they cast their ballots for Prez.
david says
See this list of “faithless electors.”
gary says
[fade in, spooky music, grainy shot of Reinquist]…he was against Brown v. Board before he was for it. Can we really trust him as our Chief Justice..
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-I’m Harrient Miers and I approve of this message
theopensociety says
undemocratic?
peter-porcupine says
…maybe it ISN’T democratic…
andrew-s says
a co-dependent judiciary?
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Eager for campaigning judges, black-robes flapping, promising strict verdicts and stiff sentences for scofflaws in news conferences before stately courthouses? What fun!
ed-prisby says
Did you enjoy the Ben Laguer, tough-on-crime campaign era? Try electing judges that way every few years. Sounds like tons of fun. Instead of having an enlightened judiciary free to concerns themselves with the “justice” of a given situation, you’d get a judge wondering how ruling on issue “x” or sentencing defendant “Y” would play out in tomorrow’s Herald. No thanks.
bob-neer says
There’s the rub. The question is, who you want making decisons about what “enlightened” means: an elite, or the people. Heck, maybe we should have the Governor appoint the members of the legislature too if the current system is so great at choosing enlightened individuals.
ed-prisby says
I admit it. I’m kind of an elitist when it comes to making decisions about upholding justice. “The people” have mob-like tendencies that judicial appoitments are designed to negate.
afertig says
I believe that people are generally good, and when there’s a fair fight, the people generally vote the right way. If they don’t, they’ll correct it eventually. But as with most things eventually isn’t “soon enough,” and there are some things that are just too technical for a broad based campaign. I don’t believe that judges should be appointed because the “elites” somehow have more knowledge than the rest of us. They should be appointed because I don’t want them to be thinking about campaigns and re-elections, I want them focusing on the law and justice.
david says
I agree with PP on the desirability of automatic term limits (10 years, 15 years, we could debate the appropriate length of time). We’ve already taken a step in that direction by adopting a mandatory retirement age of 70.
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But electing judges is a lousy idea. The only people who will contribute to these campaigns are lawyers who appear before them, and special interest groups who want to litigate specific issues. Result: inevitable conflicts of interest. Most states elect judges, and most states are wrong on this one.
bob-neer says
I’d suggest. The appointments are made in secret, more or less. Indeed, right now the lawyers are pretty much the only ones who really understand how our judges are chosen, and indeed who they are (not to mention that almost all of our judges now are lawyers, unlike in the past, as if somehow going to law school was a requirement for understanding justice). Democracy and voting, as has been said, is not a perfect system but it is the best one yet devised.
theopensociety says
if the problem is that the process not done in the open. Electing judges is such a bad idea.
bob-neer says
Open it up: have state-wide public events where people discuss the issues; events where the putative leaders meet the people whom they will make decisions for and learn about their concerns; television, radio, newspaper and blog discussions. Sounds like … elections and democracy.
danseidman says
Whatever problems accompany the selection process, they don’t corrupt the actual decisions that judges make as much as the specter of being voted out for an unpopular ruling.
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Regarding “in secret, more or less”: are Governor’s Council meetings open to the public? If that’s the problem, let’s address it.
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bob-neer says
Do you think also would be less corrupt if they served for life. I’m sure the current incumbents would vigorously endorse your position.
lynne says
They balance each other out, and that’s the way it was intended to work. One is accountable directly to the voters and passes laws, the other interprets the law and doesn’t have to worry if the right decision is a popular one.
afertig says
The job of the legislator is to represent the interests of a certain area and people. The job of the legislator is to be biased — get as much as he or she can for their constituency. The job of the judge is to represent and interpret our society’s highest ideals and enforce fair and just judgements for all.
andrew-s says
vetted by the Governor’s Council, an elected body? I wish I was better acquainted with the full process — who nominates, exactly how the approval works, whether the legislature comes into it at all (impeachment?) — but it seems that there’s some representative check in there.
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Corrections and explications happily accepted.
mags says
Then you’ll be grateful for appointed judges. In our dream world where after campaign season has ended and cooler, calmer, less-political heads rule – judges should be (and have in the past been) selected based on their qualifications to serve and nothing else. Not political leanings or affiliations – just training, experience and temperment.
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Massachusetts is very fortunate to have the caliber and quality of judges it has. Are there a few that could be weeded out? – Absolutely, but not based on a hot-button issue or a Boston Herald front page callout. There are ways to remove judges who for whatever reason become “unqualified” (illness, mental health, ethical challenges) – but that is not removal by people who have no understanding of our (Massachusetts) judicial system, it is removal by peers and supervising judges.
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Our judges (on the whole) are surprisingly apolitical. They may have been wholehearted supporters of one candidate or several at one point in time – but as they are trained and “brought up” in the system, that changes for most.
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Don’t be fooled by front page foolishness. I’m guessing that if you are lucky the only time you’ve ever been in a courthouse is for jury duty. If you really want to see our judicial system (and judges) in action – visit a local court when it is in session. See what it means to be on the bench. Visit your local court, your superior court, your district court and your federal court. You would be surprised.
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I am not a lawyer or a judge or in any way affiliated with the court system. But I am interested in the truth.
ron-newman says
for better or worse, this is how things are done in California. They removed the Chief Justice of their Supreme Court, Rose Bird, in a certification election 20 years ago. How would you like to see Margaret Marshall face something like this?
peter-porcupine says
theopensociety says
She spent the remainder of her days in obscurity, working at one point as a paralegal in a law firm.
lightiris says
The idea of electing judges by popular vote is grotesque. No thanks. I also have no problem with the appointment being for life, just like with our Supreme Court. A robust peer review process should be in place for any decisions that seem to fall outself the pale.
bob-neer says
Quis custodiet ipsos custodes?
peter-porcupine says
bob-neer says
I think I know what you mean, but please spell it out.
peter-porcupine says
who can remove a rogue judge.
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I don’t know if this has happened since the tenure of gov. andros, but the power IS there.
david says
that under Weld, a judge caught making anti-semitic comments was removed (or maybe would have been removed before he resigned) by a bill of address. Isn’t that right?
peter-porcupine says
ron-newman says
… is a legislative act to punish specific persons without a criminal trial. This has nothing to do with judicial appointments, confirmations, or elections.
centralmassdad says
PP
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A bill of attainder is, in essence, a act of the legislature criminalizing a specific person. It has a long history in common law.
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It was used in England on religious grounds, before and after their Civil War. In other words, if the Earl of Shnickelpants insisted on remaining Catholic, at a time when the monarchy was both Protestant and hostile to Catholics, the Earl could be “attainted.” Result: Ther one attainted no longer had any rights bound to respected by the crown. He could be executed, and his property could be seized by the crown, rather than passed on by will.
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I believe that the procedure may have been used to confiscate Tory property during and after the Revolution.
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In any event, this was perceived by our founders to be an abusive and monarchial power, and was therefore barred.
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I believe that in the US Constitution, the provision is now viewed as preventing the Congress from performing judicial functions. Thus, many assert that the present Congress made a bill of attainder in the Terry Schiavo case, in which it intervened to overturn the Florida courts. (Not that the present Congress has shown any respect for the institutions of this Republic, particularly when those institutions are said to annoy Jesus).
lynne says
The reason they are a check on the legislature is that they don’t have to do the “popular expedient thing” over the “right thing” because they’re appointed and worried about the next election. Not to mention, would we want them to do something like say, undermine the defense of a rapist such that that person doesn’t get a fair trial, in the name of being the judge that sentences him and gaining the name recognition for political gain?
lynne says
check on the other TWO branches, I meant to say.
bob-neer says
We should appoint everyone. Or, if you’re troubled by who would do the appointing, then elect one sturdy person and they can appoint everyone else: all these great folks so interested in doing the right thing. Personally, I like democracy: it has a better average of making the right choices than small groups of elites deciding what they think is best.
theopensociety says
The judiciary performs a function far different from members of the other branches of government. It is important for the justice system to work well that there not be even the appearance of improriety or conflict of interest. Democracy, by the way, isn’t just about being able to directly elect people to an office, any office.
lynne says
Sorta what I said in my response to Bob upthread.
bob-neer says
Means “rule by the people.” Not “rule by an unelected elite.” It is pretty hard to argue that our system of appointed judges is a democratic one. It arguably has its virtues, but they are not democratic. As to your argument that appointment somehow innoculates the system from the “appearance of impropriety or conflict of interest,” I direct your attention to the numerous instances of misconduct by appointed judges in our history.
david says
it seems to me perfectly defensible to say that having appointed judges as part of our tripartite system of government is consistent with — indeed, protective of — “democracy.” There’s more to “democracy” than majority rules. Further, by saying that “It is pretty hard to argue that our system of appointed judges is a democratic one,” I think you define the question too narrowly. When you open the question up to consider the nature of the judiciary not on its own (since it doesn’t function on its own) but rather as part of a larger system, it’s not so straightforward.
ryepower12 says
And I suppose we needed to invade Vietnam because the rest of the region was going to become communist if we didn’t?
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Slippery slope arguments rarely, if ever, work. This line of argument isn’t an exception.
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Bob, it’s really basic: Pretty blond girl gets murdered. Fox News and Nancy Grace jump all over the story. Police find tall black man nearby and arrest him. Election is in three months after verdict.
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Do you really expect the judge to do the right thing with an election on the horizon? The judge is going to want the conviction. Bringing home the bacon means someone doesn’t get a full, vigorious defense.
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From time to time Congressmen and women are asked to make unpopular decisions before elections. Sometimes they make the right decision, sometimes they don’t. However, unlike judges, a person’s life deosn’t depend on whether or not we either build a Bridge to No Where or vote against the flag burning amendment.
afertig says
No, Ryan, the judge should wage the campaign that Deval waged – talk about justice and high ideals. The judge in that situation should talk openly and candidly about the facts of the case, and sound reasonable and fair. And the judge in that situation to expose the attacks for what they really are. I do expect the judge to do the right thing. If what we expect is the lowest and the worst, that’s what they’ll give us. I expect and demand more.
ryepower12 says
Deval was a) 1 in a million and b) running for Governor, which is very different than county judge.
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Do you expect even the best judge’s campaign to reach out to the voters? No. It’ll become a game of special interests as I think Dave already mentioned.
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If what we want is the lowest and the worst, then we should probably elect our judges. If not, let’s keep their names away from the voting booth.
afertig says
But I do not agree that the voters mostly choose the lowest and the worst.
ryepower12 says
But the further down ticket, the easier it is for that to happen. And considering Bush was elected twice, that’s saying a lot.
bob-neer says
You just don’t see it. Or do you somehow believe that our process of judicial appointments is magically different from the process by which we fill other appointed offices in the Commonwealth.
ryepower12 says
If you think it’s bad now, just wait till you see 527s airing commercials on TV and justices avoiding making the tough decisions come election season.
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If you want to see how devestating electing judges can be, Texas never would have went Republican if not for the fact that Rove and company focused on winning judicial offices first. Suddenly, their picks controlled things like campaign finance issues and it was how they built up their entire movement. I can’t stress how bad an idea electing judges is.
centralmassdad says
We don’t live in a democracy. This is because democracies don’t work.
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We live in a republic, and there is nothing about an appointed judiciary inconsistent with a republican (please note small “r”) form of government.