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Electing or appointing?

Each system has its advantages, disadvantages

In Mississippi judges are elected and appointed. Is one method better than the other? Often judges are appointed to fill unexpired terms and go on to be elected to their own terms. Nine justices of the Mississippi Supreme Court are elected from three districts. Non-partisan elections are staggered so that not all positions are up for election at once. The justices serve eight-year terms. Also with the staggered, non-partisan system, 10 Court of Appeals judges are elected from five districts and serve eight-year terms. Judges of Circuit and Chancery courts are elected to serve four-year terms.

“Each system of selecting judges has its advantages and disadvantages,” says Dean Jim Rosenblatt of the Mississippi College School of Law. “Though the Mississippi system uses the election process to select state judges, recent events demonstrate how common it is for judges to be appointed for their initial term in order to fill vacancies.”

Former Supreme Court Chief Justice Edwin Pittman feels the appellate court system works pretty well as most judges were first appointed and then elected.

“You will find a ratio of five to four who were first elected so there’s always balance on the Supreme Court,” Pittman said. “Quite a few are appointed on the Court of Appeals. As chief justice, I supported appointed judges. Our judicial system has cleaned up a lot. The trials in Oxford had a good effect on the courts. We have an excellent Supreme Court now, and I have heard no complaints about the Court of Appeals.”

Mark Herbert, an attorney with Watkins Ludlam Winter and Stennis, served on a committee of the Mississippi Bar that studied the impact of elected judges and the alternatives available. “The election of judges, particularly appellate judges, is an archaic practice that if it ever had any utility or justifications, has long since passed,” he said.

He says there are at least three reasons for believing electing judges to be archaic. First, the justification of some that electing judges keeps them attuned to the political whims of their constituents is the primary reason not to elect them. “You want judges who are unbiased and dedicated to deciding cases on their individual merits, not the political whims of the population,” he said. “Your view may be in the majority in this election, but it may be in the minority view the next time and you don’t want that judge to change with the political winds.”

He feels the business community especially needs predictability in the judicial process, not political grandstanding, and that the election of judges is an important issue for all citizens.

“Second, electing judges forces the candidates to adopt platforms and come close to committing in advance as to how they will rule on certain politically sensitive matters,” Herbert said. “That destroys the goal of an unbiased judiciary.

“Third, as we have seen electing judges has sent the cost of those elections through the roof and forced candidates to actively conduct fundraisers. Raising money for high-priced judicial elections cannot avoid making the candidates beholden to those individuals and interest groups who contribute.”

By contrast, the federal system of having the executive branch nominate candidates with the advice and consent of the legislative branch has worked well and produced many great judges. “There have even been some alternatives proposed for electing judges initially and then only having recall elections every six years,” Herbert said, “so that a really bad judge could be removed, but this has not gained traction in Mississippi.”

Dean Richard Gershon of the University of Mississippi School of Law prefers a system in which judges are appointed by the governor and then reappointed by election. “I do not like a system of electing judges, generally, because I think the judges should be fair and independent,” he said. “The Legislature represents the people, and the judiciary is a separate branch under the constitution. It should serve as a check on the executive and legislative branches and should not be persuaded by public opinion.”

Pittman, who is now practicing with the Ridgeland firm of Pyle, Mills, Dye and Pittman, would like to see a plan creating larger judge districts and longer terms of office.

“It’s better to have judges riding a circuit,” he said. “In some cases you have one judge regardless of what case you’re filing. In counties without many judges, if you have a problem with a judge, you always have a problem.”

He feels the state has a good mix of appointed and elected judges but needs a broader base with fewer elections.

“It is true that voters don’t always know candidates for judges,” Pittman said. “The candidates spend money to make themselves known and now there is more corporate money involved in the elections.

“I tried to limit the money and influence contributors can have on judges.”

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