Should Virginia move to a merit-based system of electing judges?

The Virginia Constitution provides that "the judges of all courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly." The responsibility to appoint the judges of the commonwealth is one of our most important duties as elected representatives of the people. Our system of justice is based on the rule of law, and as lawmakers, we recognize that the citizenry must have complete confidence in the qualifications, fairness and impartiality of the judges appointed to the bench. Without that confidence, our system of justice and, in turn, our republican form of government, will be consigned to the dust bin of history.

Most members of the House and Senate, therefore, take great care in selecting well-qualified judicial candidates on the basis of merit. For example, most would agree that the Roanoke area delegation to the General Assembly has cooperated amicably for many years to ensure that its appointments to the various courts have been a superior group of men and women. Judges in other areas of Virginia enjoy the same reputation. In addition, the current process is characterized by public access to and participation in the interview process by the courts of justice committees.

Nevertheless, complaints with the current system have surfaced from a few corners, most notably among liberal elites and newspaper editorial boards. The complaint heard most often is that the current process is too messy, too rancorous and too discordant. In short, the complaint is that the process is too political. But politics are only a symptom of the democratic nature of the current process. The authors of the Virginia Constitution created a public and highly accountable system in which the people electing the judges are themselves judged and elected (or rejected) by the people. In such a system, some politics are inevitable.

The critics would prefer that power be taken away from the people and instead given to an unelected bureaucracy known as a selection commission. They argue that this change would remove politics from the selection process. In actuality, it would hide the politics and weaken the accountability and transparency of the current process that make it superior to alternative methods.

In a 1947 speech to the House of Commons, British Prime Minister Winston Churchill said, "Democracy is the worst form of government except all those other forms that have been tried." His point was that while often flawed, a democratically elected government always is preferable to the alternative, whether a monarchy, a dictatorship or a military junta.

The same can be said for Virginia's current practice of assigning judicial selection to the General Assembly. While occasionally messy, often cantankerous, and always political, our current system of appointing judges by the democratically elected representatives of the people is preferable to all other systems.

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