Appointed vs Elected Judges
One of the longest-simmering debates in Massachusetts is over whether judges should be appointed or elected. It’s a debate that comes up frequently, particularly when a judge renders a controversial decision or when an ex-felon reoffends and winds up in the news.
While these situations can certainly be frustrating and sometimes downright unacceptable, count me in the camp of those who believe judges should be appointed. And here’s why: elections inevitably come down to money. And then popularity.
The bad thing about electing judges is that it would always come down to who can raise the most money. And also how well-liked or popular the person is. And to be popular, you have to take care of people. You have to do favors. You can’t make tough decisions as you’ll likely make enemies. These are all dangerous things for politicians, let alone judges who must remain impartial. The fact is that for anybody, politics can be quite an aphrodisiac, and that comes with many pitfalls.
The appointment process we have in place in Massachusetts is extremely rigorous. There is a political element, as many judicial candidates make campaign contributions to the governor, legislators or sometimes even the governor’s councilors who make the decisions on who gets on the bench. But there is a robust review process in place that while not perfect, is adequate and effective in ensuring quality judges are in our courtrooms.
It all starts with a pretty comprehensive application that is reviewed by the Judicial Nominating Commission, which is appointed by the sitting governor. They vet the candidates, conduct an interview and vote. Once they get through that rigorous process, which also includes a background review, the application goes to the Joint Bench Bar Committee, which is made up of lawyers and judges, active and retired. A second round of interviews is conducted. That committee also does background checks and a report is sent to the governor.
The Joint Bench Bar Committee votes, but it is not a binding vote. It’s another vetting instrument. Candidates then typically meet with the governor and the governor’s general counsel for an interview. If they get through that, they meet with the governor and the lieutenant governor for additional interviews. If they are then nominated for appointment by the governor, they go before the Governor’s Council, which includes one elected councilor from every county in the state. The council conducts interviews, more background checks and public hearings on the candidate. They then take a public vote and if approved, the appointment goes to the governor for final approval.
As this description shows, it’s an extremely rigorous process and is a much more fair method to determine who is qualified than an election that is likely based on fundraising and popularity.
Judicial appointments are lifetime appointments so the obvious question is: how do we keep judges accountable? Those upset with judges can file complaints with the Judicial Conduct Commission. The JCC takes its work seriously and there are judges who resign because of complaints, investigations, etc.
Is it a perfect system? Of course not. But I believe that it’s a far better system than leaving it up to elections, which are bought and paid for.