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Indiana Judges Association: Is it time for an electoral college for judges?

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IJA-Dreyer-David“I was married by a judge. I should have asked for a jury.”

Groucho Marx



Some people just do not like judges. But according to Indiana University Maurer School of Law professor Charles Geyh, most people do – at least up to a point. In Marion County, 18 judges were just “elected.” Or were they? Did the voters pick them, retain them or what? We don’t know because the voters don’t know. Geyh has chiseled an indelible body of work about judicial selection. Aside from Marion County’s “rather odd hybridized system,” his thinking has evolved over many years of research and observation. As he and others describe, overall the dilemma lies in the seemingly unattainable balance between “accountability,” i.e., elections by the people, and “independence,” that is, insulation from the people – or at least political and public influence.

Even the Framers argued about whether judges should be elected, appointed or whatever. Alexander Hamilton argued in “The Federalist Papers” that lifetime appointed judges were necessary “to guard the Constitution and the rights of individuals from the effects of . . . ill humors.” Indeed, as an elected judge, I have often suffered from “ill humor,” but is that any reason to preclude the public’s chance to select, or at least approve, the judges who decide their cases? Thomas Jefferson, like Groucho Marx, held a pessimistic view of judges’ power, believing that “Our judges are effectually independent of the nation. But this ought not to be … they should be submitted to some practical and impartial control.” Jefferson always advocated an elected federal bench or at least one more closely controlled by the executive branch (see Marbury v. Madison).

According to Geyh, about 80 percent of all state court judges face some sort of ballot – whether direct partisan or nonpartisan election, retention after appointment, or some mixture. For example, all Illinois state court judges are elected by direct partisan election and then thereafter stand for nonpartisan retention. But as Geyh recounts, the voters in Chicago get a judicial retention ballot listing over 100 names! Is that any better than Marion County’s intraparty “pick your top 9” system? As indicated at the outset above, Geyh finds that most people are just fine not knowing who the judges are.

“The best defense of judicial elections,” says Geyh, “is that 99 times out of 100, people are happy to just let a judge stay in office because it is assumed the judge is OK.” But on the other hand, “the public still wants that one time out of 100 to ‘throw the bum out’ if they feel like it.”

There are countless examples of good, elected judges who were thrown out after making correct, but unpopular, rulings as well as bad judges who were politically appointed within a so-called “merit” system.

“No system is safe,” says Geyh, who, after years of studying judicial selection, concludes that it is “a poor idea to take a ‘one-size-fits-all’ approach.” Despite the well-known pitfalls of electing judges, Geyh reasons that such elections may outweigh concerns about independence and serve a useful purpose “where there is a deep-seated lack of confidence in courts.” Voters in such communities may need this accountability for public order. But Geyh says Indiana “has done pretty well maintaining public confidence,” and risks losing that proper balance between accountability and independence since selection systems among our counties are so varied.

When I was teaching a class, I asked the students how they voted for judges. Some said they voted just for women or looked for nice names (I wondered how I got elected) or just did not pick any. One student had a novel idea: why not have sitting judges pick them? After all, he reasoned, they know more than anyone who is qualified, fair and mild-tempered. As the media and the non-legal public increasingly scrutinize courts and judicial selection, maybe this is an idea whose time has come. If for no other reason than to see if Thomas Jefferson will turn in his grave, why not form an “electoral college” of sorts among the Indiana judiciary? Could this be any worse than the various theories and practices that have left the public largely befuddled, not to mention a clear lack of consensus among so many experts? As long as a public retention vote remains, would the public really care who picks the judges in the first place? A diverse panel of judges could arguably do as well as any current system or better. The benefits:

• Improved neighborhoods – there would be 80 percent fewer yard signs.

• Improved economy – there would be 95 percent fewer political fundraisers.

• Improved legal profession – think how much more civilized the lawyers will become, at least to we judges.

• Improved national standing – the Indiana Plan would take its place alongside the Missouri Plan (or at least whatever the Marion County plan is called).

Nevertheless, the more we care about how judges are selected, the more we develop an investment in our world. For with our courts, and the public’s confidence in them, we are the best country on the planet. We can select judges any way we want and the bottom line still never changes: the Constitution, equal access, time-honored due process, and the law. And judges will be there every day to make sure it never changes – no matter who picks them.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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