Take sale sign off of Lady Justice

“State courts resolve the most important legal matters in our lives, including child custody cases, settlement of estates, business-contract disputes, traffic offenses, drunken-driving charges, most criminal offenses and most foreclosures. More than 100 million cases are filed in state courts each year.
“When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”
Those were the words of retired U. S. Supreme Court Justice Sandra Day O’Connor in a recent opinion article in The New York Times. Although states in our country have varying methods of choosing judges, from lifetime appointments to partisan elections, O’Connor believes judges with a lifetime appointment are not accountable to voters and that elected judges are susceptible to influence by political or ideological constituencies, neither of which is acceptable.
A better system, she believes, is one that strikes a balance between lifetime appointment and the election process, a process that is used in two-thirds of the states. She proposes a system that provides for the open, public nomination and appointment of judges, followed by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out. This, Justice O’Connor says, protects the impartiality of the judiciary without sacrificing accountability.
Alabama had an opportunity to move in this direction in the early 1970’s.  As the late State Chief Justice, Howell Heflin and others were formulating the massive judicial reform effort, approved as a constitutional amendment by voters in 1973 and finished with implementing legislation in 1975, a movement was afoot to include merit selection of judges in the proposal.
I was working for the courts during those years and I will never forget sitting in Heflin’s office when he took a call from then Gov. George Wallace. “Howell,” Wallace intoned, “I’m not going to oppose you all on this court reform thing, but if that idea of not electing judges is in it I’m going to stump the state to keep it from passing.”
Needless to say that ended the discussion on merit selection of judges and at a meeting in Birmingham a few weeks later Heflin told a Citizens Conference on State Courts that such a proposal would have to be “put on the back-burner for awhile.” Thirty-seven years later it remains on the back-burner and the influence peddlers are continually operating to remove the blindfold from Lady Justice.
A classic example in recent months has been the courting of the state’s highest court by the governor.  Gov. Riley has wooed the justices mightily to rule with him on his anti-gambling issues, including skimming $20 million from the State Highway Department’s Road and Bridge Fund for the court system’s budget.  This past week, sure enough, the high court handed him a favorable ruling.
No matter that it very well may have been the correct legal decision, it sure looked suspicious. An argument against merit selection is that it deprives voters of the chance to choose their judges. But as O’Connor points out the truth is, in those states that elect judges, candidates often run unopposed, so voters are left with no options, and little information about the people who are on the ballot. “In a system where judges are evaluated before they are put on the ballot, voters can make their decisions more knowledgeably – with relevant information about the judges’ performance on the bench or as a lawyer,” she stresses.
Take a moment and think of what you really know about the statewide candidates for our appellate courts in this year’s races other than the party label. They are mainly stealth candidates, some with enough campaign funding from the special interests to provide them air time, others operating on the hope of a miracle. It’s not the way we should choose people who wield the awesome power of a judge. This year 16 states will hold elections for their highest courts but some states where judges are still elected are considering constitutional changes to a merit selection system. In Nevada, a state ranked eighth in campaign spending on judgeships, the Senate minority leader, a Republican, and Assembly Speaker, a Democrat – have pushed through a ballot question that citizens will vote on this November on whether to institute a merit selection system for judges.
Perhaps it’s time we took the idea off the back burner in Alabama.
Bob Martin is editor and publisher of The Montgomery Independent. Email him at: bob@montgomeryindependent.com