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If it ain’t broke don’t fix it

By October 21, 2009Uncategorized

I attended a law program recently where the discussion was about whether judges should be selected, as opposed to being elected.  Louisiana is one of the 20 or so states that elect judges.  Other states use some form of appointment process.  The program I attended featured a debate between a lawyer representing the organization in favor of 'reforming' Louisiana's system (i.e. in favor of 'merit selection') and a plaintiff lawyer arguing that the current system should be kept as is.

The 'merit selection' advocate began by suggesting that of the three branches of government, the judicial branch performs a very specialized function.  Lawyers argue the law, and judges apply it.  Therefore, it makes sense not to subject judges to elections by the entire voting populace.  Judicial elections can be expensive, which means that judges have to raise money, and that creates an uncomfortable situation. If you hire me to represent you in a case in front of a certain judge, you aren't likely to feel confident if the opposing lawyer was his campaign manager.  Or if he was a large donor.  True, these financial issues might not have any influence on the judge (most judges have no problem ruling against their friends, if that's what the law dictates).  But, to the average litigant, it doesn't seem right.

Also, there is the problem of judicial elections becoming unseemly.  If you think that some of the plaintiff personal injury TV ads are distasteful, wait until the next hotly contested judicial race. It's hard to believe amidst a barrage of personal attacks and specious claims (tailored to sway the passions of the uninformed general electorate) lies someone who is going to assume the role of a dispassionate dispenser of impartial justice.  A young law student asked why, in these contested state court judicial races, almost all of the candidates claim to be "tough on crime."  Why don't judicial candidates tout their inclination to uphold civil liberties of criminal defendants?  We know the answer: it's because the average person doesn't want to hear that kind of talk.

The lawyer who advocated keeping the current system of electing judges agreed that judicial elections are often excessively contentious, but downplayed the harm.  He argued that the current system is fine, and claimed that studies show that most people are happy with the system.  The main theme, which he repeated often, was "if it ain't broke don't fix it."

My view on this debate is irrelevant.  The odds are exceedingly low that Louisiana will change the way it elects judges.  Too many people who have benefited (or who perceive themselves to have benefited from it) would have to give in for it to change.  But even if you try to build your strategy for changing the system on an appeal to people who have no self-interest in the system, you're not likely to get much traction.  Most people either don't care, or switch the default mode which is to disfavor change.

I thought that the lawyer who argued against changing the system did a poor job of advocacy.  To me, his effusive passion was not helpful in a scholarly debate. But, I'm not his target.  Judged by effectiveness, he did a great job.  He appealed to the two key sensibilities that would work against modifying the current: entrenched self-interest and fear of change.

Political systems can only be meaningfully reformed when they are first being created.  We can rhapsodize all we want about how wise our forefathers were, but the reality is that they mostly took advantage of a unique opportunity.  Once you set the wheels in motion, and drive along for a couple of decades (or in our case 200+ years), the odds of making any significant change becomes miniscule.

It doesn't have to be a question of whether the system "is broke and needs fixing."  One could sit back and think about how to optimize it, to make it better.  The problem is when the system is mature too many people only care about optimizing it in the way that helps them.  Or they don't care at all and would just rather not have to deal with change.

I don't like the current system, and I can think of a lot of ways to make it better.  I am pretty sure that most of the state court judges who

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