It's time to elect judges in Virginia

While traveling in North Carolina last week, I was struck by the number and variety of political yard signs I saw. In Virginia, the only signs visible are for the presidential race and for various congressional races. In North Carolina, by contrast, the state legislators are running this year, and there is a close U.S. Senate race, along with the presidential race.

But most striking to me were the yard signs for candidates for judgeships. We never see these in the Old Dominion. Virginians have no role whatever in the selecting of judges. It is time for that to change.

Under the Virginia Constitution, the members of the General Assembly elect justices to the Virginia Supreme Court by simple majority vote, for a term of 12 years. Judges to all other courts are chosen by the same simple majority, for a term of eight years. Should a vacancy occur while the General Assembly is not in session, the governor may appoint someone, subject to the legislature’s approval. It is a system that Virginia shares only with South Carolina and Connecticut.

Under this system, it is hardly surprising that a number of ex-legislators have been elected to the bench. Former state senator “Bo” Trumbo is a local example. In theory, Virginia’s closed judicial selection system ensures that the most highly qualified judges reach the bench, after undergoing rigorous scrutiny. Theory also holds that Virginia’s system keeps the selection process from being “politicized.”

The first part of this theory may be correct, but the second part is simply wrong. Legislatures, by their very nature, are political bodies. Those elected to them are politicians. In all but two cases in Virginia, legislators are Republicans or Democrats. Passing legislation is a political process, confirming members of the Executive Branch is a political process, and selecting judges is a political process. In fact, in recent years the legislature has come under some criticism for inserting more politics than usual into the judicial selection process.

So, if we accept that the process is already either politicized, or open to being politicized, the question becomes, who shall be involved in this political process? Shall it be all the citizens, or shall we continue to permit a select few to dominate?

A related question is exactly what “politicized” means. To argue that judges should be remote from the “political” process is another way of saying that judges should be able to ignore the people. It is by no means self-evident that this is a good idea. Earlier this year, we faced the appalling prospect of a majority of the U.S. Supreme Court (five people) striking down the Pledge of Allegiance. Just last month, a state judge in Louisiana struck down a ballot initiative that had received the support of nearly 80 percent of the people of Louisiana.

While no such travesty has occurred in Virginia, there is also no safeguard that it will not happen here. Nor is there any good reason to wait until it does to initiate reform.

Some argue that judges should be able to make tough, unpopular decisions without having to worry about losing their jobs. This argument assumes that citizens are not persuadable. If a judge makes an unpopular decision, all facing an election means is that the judge must explain the decision to the voters. There is nothing scary about this. Judicial decisions affect our lives. It is not unreasonable to demand an explanation.

Moreover, judges currently come up for reconfirmation periodically. Thus, they may already be avoiding tough, unpopular decisions just before going back before the legislature. Again, the process is already political; why should it be so exclusive?

A system of electing judges does not have to exclude the legislature. Fifteen states use a procedure called the “Missouri Plan,” under which elected officials, or their designees, select a judge, who then must go before the voters at the next general election. Nearly half the states elect judges directly, and require judges periodically to go before the voters in a “retention election,” in which voters case a “Yes” or “No” ballot on the question: “Shall Judge X be retained in office?” Any one of these plans strikes a better balance between the need for judicial independence on the one hand, and respect for the will of the citizens on the other than Virginia’s current system.

Electing judges does not guarantee that they will not ignore the people. It does, however, prevent judges from ignoring us without penalty.

There was a time in this country when the Common Law tradition prevailed, and when judges saw themselves as the interpreters, not the creators, of law. (For the moment, most judges in Virginia still see themselves this way.) In recent decades, however, judges around the country have inserted their own political views and political agendas into their judicial decisions. By doing so, these judges have made themselves into legislators.

Fair enough. But there is no reason they should be unelected legislators.