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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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