There’s a case to be made for appointing judges, but there’s also one for electing them. Politics, law professionals point out, are involved with both methods.
“The politics will take on a different form and work in different ways, but there will be politics with elected and appointed judges,” says dean Jim Rosenblatt of the Mississippi College School of Law. “The question of the method for judicial selection is not a simple one and there is not an easy answer. Some folks divide the question and recommend one selection system for trial judges and a different one for appellate judges.”
Many of the state’s judges came to the bench by appointment as positions became vacant due to death, retirement or resignation and the governor made replacements.
“In Mississippi, there is a strong philosophical bent for electing public officials. If one has confidence in the voters and believes they will select ‘appropriate’ judges, then one tends to favor judicial elections,” he said. “On the other hand, without that confidence in the choices of the electorate or if one is aligned with the person or body doing the appointing, one tends to favor the appointment method.”
Gulfport attorney Tim Holleman says the election or appointment question is a two-edged sword, and the right to elections isn’t one citizens should give up lightly.
“Money is driving the elections and special interest groups are getting involved. That’s the great concern I have,” he said. “Candidates must raise money to run. If we didn’t have fundraising issues, elected judges would definitely be best.”
Holleman, who’s practiced law 28 years, says he’s in favor of elected judges but feels there has to be a better system. He would like to see a fund created from contributions that are divided among all candidates. Such a fund would require legislative action.
“We need to figure out a system where money and outside groups are not driving campaigns. We need to see the real basis of who’s supporting candidates,” he said. “The system is not working. It puts these judges in positions to have to raise money, and I think they’d prefer not to do that.”
He thinks the television commercials for judge candidates are horrendous and remembers when his dad, the late Boyce Holleman, was district attorney. “We didn’t have TV and glitz. The candidates got up and spoke at rallies that were well attended. It was not unusual to go to two or three a day,” he says. “I don’t know if people would go to rallies now.”
George Cochran, University of Mississippi School of Law professor, has looked at national studies that for the most part support appointed judges even though it’s not a perfect system.
“Elections can be good too, but raising funds is a huge, huge problem because there’s a high cost to be elected,” he said. “Judges can run on issues that are of interest to interest groups who fund issue ads. The benefit is that it raises discussion among voters — it opens up debate.”
Cochran, who’s taught constitutional law and federal jurisdiction since 1974, says those with a Jeffersonian viewpoint like elected judges. The trick is to get qualified people to run.
“I can’t decide what makes someone qualified or not qualified to run. It depends on whose ox is being gored,” he added. “Deciding who’s qualified is like discussing sex and religion.”
MC School of Law professor Matt Steffey says the question of elected or appointed judges has been under scrutiny since the early 1990s when he started teaching.
“It’s been on people’s minds with the pros and cons playing out,” he said. “Since 2000, the case for changing the current system has gotten stronger and stronger. The races have gotten expensive and preposterous, and there’s not much that can be done about attack ads.”
Steffey and Holleman cite the attack ads in the race pitting sitting Supreme Court Justice Oliver Diaz against Chancery Judge Bubba Pierce as especially odious. “You could go through anyone’s record and exploit the results,” Steffey said. “That undermines public confidence. The ads are misleading and suggest that applying the law when a new trial is called for is a bad thing even though it’s sometimes necessary.”
Steffey says a judge should not be proud of never wanting to re-try a case and that the public should find such a claim alarming.
Rosenblatt agrees that money needs to be made less of a factor in judicial elections if that is the selection method state residents will use.
“It is incredulous to me the amount of money it takes to finance a judicial campaign,” he said. “I know there are many fine attorneys who would make great judges who simply choose not to run because of the need to raise such substantial campaign funds.”
To that point, Steffey says we can expect fewer people of stature to be willing to run. “I would say you’re crazy if you think I should run so I can be defamed in the media and raise tons of money,” he said. “Left alone, these elections will get worse. We’ve got to take a serious look at the way we elect judges. The present system makes the public think the judiciary is for sale. With races for circuit and chancery judges, the candidates go around to all the towns in the district and meet people. If a district is too big for that, then the judge should be appointed.”
He also sees problems with appointments made solely by governors. Suggestions to improve the appointment system include having a bi-partisan group that’s outside politics submit qualified names to the governor or have the governor’s appointments confirmed by the state legislature.
“There are all sorts of bi-partisan groups in the Mississippi Bar who work together,” Steffey said. “There is some concern that by moving to an appointed system, persons of color and women would not be appointed. That would have to be addressed and the system would have to have broad public support.”
Contact MBJ contributing writer Lynn Lofton at firstname.lastname@example.org.