SADOW: Denying The Public Information About Judicial Candidates? Really?

Those members of the House and Governmental Affairs Committee who recently voted for HB 206 either don’t understand the bill’s implications or aren’t for good government.

The bill by Democrat state Rep. Kyle Green would remove partisan designations from judicial ballots. While most states use elections to pick state court judges at least at the highest level, most that do don’t have partisan elections, the majority don’t use elections at lower levels, and Louisiana is unique as the only state that has partisan elections at all levels and does not feature retention elections as part of that.

Elections alone aren’t the best method because that carries the most possibility for political considerations to intrude in the selection process. This occurs because of the vacuum of information that voters by necessity have about these elections. They have next to no access to the minutiae behind decisions of sitting judges and for candidates without any bench experience none whatsoever. Further, even with that access most likely don’t have the interest to commit to understanding these.

The best method of selection involves having a figure such as a governor making selections vetted by one or both legislative chambers, followed by a retention election, ideally nonpartisan, after a few years of appointment. This gives voters a chance to evaluate the products of decision-making, and if enough disapprove the judge is removed and the process begins again. If retained, regular retention elections follow.

But as Louisiana doesn’t use a system like this, then partisan elections are a far superior method than the nonpartisan ones that the bill envisions. That’s because partisanship gives voters a crucial piece of information in their voting choice. If all judges followed a strict constructionist view of judicial review, party affiliation wouldn’t matter much. But too many, a prominent example of which is just now ascending to the U.S. Supreme Court, practice judicial activism which means they rely upon their own political views to supply meaning to what they believe the Constitution (federal or states’) should say.

Any politician that tells you nonpartisanship, supposedly inserted by nonpartisan elections, removes or even reduces politics in judicial decision-making that ideally shouldn’t have that, is either stupid or lying. As long as judicial activism lives and breathes You can’t by any means, and at least partisan elections give voters the most important clue as to what vision of government a judicial candidate likely has that will inform his bench rulings. Robbing voters of that only creates less accountability, especially with open seats at the district level that almost always offer up candidates with no record. Nonpartisan judicial elections make for more opaqueness when judges become bound to make policy from the bench.

Indeed, certain legislators have every incentive to want nonpartisan judicial elections because these improve their chances of fulfilling their future political ambitions. A judgeship is the most plum position in Louisiana politics. You work whenever you want, there’s no accountability for the quality of your decisions, there are no sanctions at all against what you do unless you do something egregiously unethical, and you draw a fat paycheck in the neighborhood of $150,000 a year.

Best of all, it’s almost always yours for life (defined as going over age 70) as judges have secured reelection (and for terms up to a decade in length) in Louisiana in recent years at a rate of well over 90 percent, in part precisely because they face low-information elections where the one piece of information more influential on voting choices than partisanship is name recognition, which incumbents have. And, their incumbency also prompts the local lawyer community to pony up donations to technically unconnected, wink-wink-nod-nod, campaign committees on incumbents’ behalf out of fear the reelected judge otherwise will be biased against them or their firms, giving incumbents plenty of funding to combat challengers – if not scare anybody off from running in the first place; well over half of all Louisiana judicial contests with incumbents in recent years haven’t even drawn a challenger. Removing partisanship as a voting cue only strengthens the cult of name recognition and incumbency, favoring such candidates.

Thus, legislators of the legal profession often see judgeships as places to parachute into as a way to extend and enhance their political careers – if they didn’t see a legislative gig as the first step to a judgeship before even entering the Legislature. Typically, over recent years at least one sitting legislator annually runs for and almost always wins a judgeship, aided by their name recognition. Nonpartisan judicial elections strengthen their chances of enticing voters to let them make this transition.

If you cling to the idea that judicial elections should minimize politics in these, get rid of all but retention elections. Alleging that nonpartisanship does that either comes from ignorance or is a hustle diverting attention from the fact it does nothing of the sort and thereby serves the needs of politicians, not the people. Legislators interested in transparency need to reject HB 206.

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