It's back. The regularly (and wisely) rejected idea of appointing the members of this state's highest courts--instead of electing them--has shown up again. This time it was floated by our otherwise sensible, experienced governor.
Why would Asa Hutchinson bring this loser of an idea up again? Is it because, as a Republican by instinct and conviction, he just can't overcome his suspicion of all things populist--like the popular election of judges? Or is it because the timing is right? Just now Arkansas' highest court is in disarray, with its most senior judges accusing the others of conspiring to obstruct the judicial process. What a spectacle. And would a new system of choosing judges restore a measure of respectability to our highest court?
No, that isn't it, says our always tactful governor, "It is certainly not any reflection on the current court at all." He just sounds wary and weary of all the hubbub that goes with electing judges--democracy can be less than dignified--instead of having them appointed by some respectable, blue-ribbon commission. That is, fellow members of the legal establishment in good standing--you know, good old boys (and now girls) with the right credentials. Which may sound fine in theory--till the realization hits that the elite practice politics, too, if in a smoother way.
As for the voters, aka We the mere People, we wouldn't have any say in who judges us till we were asked to accept or reject our betters' choices for the bench. Even then we would get only a minimal say. In states where judges are appointed rather than elected, it's rare that the voters turn down the establishment's recommendations. Though it's been known to happen, often enough for the wrong reasons. As when a principled court delivers a decision that outrages the public--even if the judges are just following the law and their own conscience when it comes to interpreting the law.
Why not just let the people rule (Regnat Populus!) from the first? At least there would be no pretense that politics had been eliminated from judicial selection, instead of only covered up by letting some distinguished commission do the selecting.
What we have here is a familiar delusion in the politics of law: We assume the problem is the way in which we choose judges, not our poor choices. One former member of the state's highest court, Bob Brown, was quick to point out that changing the way we select judges won't eliminate the political games involved, it'll just mean that a different kind of politics would be practiced--one that pretty much cuts out the people.
To adapt some lines from an Elizabethan playwright of some note: The fault, dear Asa, is not in our stars/ But in ourselves, that we are underlings. In the selection of judges, as in so many things, character is all--and just changing the system won't guarantee judges of character, probity and impartial demeanor. It'll only change the system.
Editorial on 04/16/2015