Another Reason Judicial Elections Are Dumb

This year, for the first time in West Virginia, our judicial elections will be “non-partisan,” meaning candidates won’t be designated as belonging to a political party. That’s a shame, because that’s at least a useful data point to consider, even if it’s not definitive.

I’ve never been a fan of electing judges. Judges are supposed to be impartial servants to the law, not popular opinion. There are times when they should do the exact opposite of what the Twitter-mob wants. Insulation from the political process (with the acknowledgment that complete insulation is impossible) is critical if we expect the “rule of law” to mean anything.

Beyond such philosophical issues, there’s another reason that judicial elections are just dumb, one that I’ve been particularly aware of here as we begin to see campaigns for the West Virginia Supreme Court of Appeals get into full swing. People generally vote for politicians based on what they promise to do, either for particular groups of voters or the nation/state/county as a whole. It’s crass sometimes, but that’s how democracy works.

Here’s the problem when it comes to judicial elections – judges can’t make promises like that. For one thing, while the hoary right-wing chestnut that “judges don’t make law” is as silly as ever, courts are limited to issues brought before them in actual disputes between parties. No court has the power to simply issue an opinion on its own. For another, rules of judicial ethics prohibit candidates from promising to rule in particular ways on issues that may come before them. No judge can say if they’re elected they’ll rule a particular way on an issue or in favor of a particular party.

But if a judicial candidate can’t say “vote for me so I can do X,” what can they do? It comes down to a choice between meaningless fluff and vague non-sequitors.

In the current WV Supreme Court race the fluff angle belongs to Bill Wooten. His ads that I’ve seen (can’t find them online – how can a candidate for office in 2016 not have a web page?!?) all star his grandkids and highlight his role as a grandfather. Which is great (the kids are cute), but what does that have to do with his ability to be a justice? I realize that a big part of politics, at least locally, is name recognition, so the fluff accomplishes that (see also gubernatorial candidate Booth Goodwin’s ad about his WV birthmark), but it’s awfully thin gruel if you’re trying to figure out who to vote for.

At least fluff doesn’t promise anything more than that. This ad, from Beth Walker, promises something she can’t deliver:

Since when do Supreme Court justices decide to increase penalties for crimes? Putting to one side the foolishness of her plan (Really? We haven’t tried locking people in cages for selling drugs yet?), it’s just empty rhetoric. The cynic in me says all political rhetoric is empty – promises made are rarely kept, after all – but at least they’re plausible. The get tough promise is particularly odd in West Virginia, where sentencing is purely statutory and tied in with a parole system. Unlike the federal system, judges don’t have an awful lot of say on how long someone stays in prison.

That’s not to lay the blame at the feet of these, or any other, candidates. It’s not their ads that are dumb (although I disagree with Walker’s policy position), it’s the game they’re playing that is. They’re doing their best to convince people to vote for them in an election where they can’t promise to do anything if elected. It’s bound to lead to meaningless drivel in commercials. Which is kind of the point – is this any way to select the men and women who preside over the justice system?



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