I think the question I get asked most about the election ballot is, “How should I vote on the judges?” It’s understandable. For one thing, the judicial campaigns provide very little information. Other than the local superior court races, the official election pamphlets say absolutely nothing, and there is no campaign material provided by the “candidates”. The other thing is that, as an attorney, it’s assumed that I’ll know all about the various judicial races and their candidates.
Well, it is true that as an attorney who does litigation, including handling appeals, I do have some contact with a portion of the bench, but my knowledge tends to focus in my particular areas of practice and my particular appellate district. There are really two salient facts about judicial races: 1) the vast majority of the electorate has no idea about what makes a good judge, nor sufficient information about the candidates to make informed choices, even if they did; and 2) except for elections for open seats on the local bench, almost all judicial retention elections are little more than formalities. With the exception of when the Republicans targeted the Rose Bird court, I’ve never seen an appellate judge get less than a 90% vote in favor of retention. Does that mean that everyone’s happy with their performance? No, it just means voters don’t feel qualified to vote no — and they’re right.
In fact, I’d argue that the general public isn’t qualified to vote on any judicial office. Voters simply don’t, and can’t be expected to, know enough to make informed choices. So, what should we do instead? Should we go to the federal system, where a judge, once appointed, serves for life? Maybe, but that means the only way to remove a poorly performing judge is impeachment, which is a drastic, very rarely used, and very cumbersome procedure.
I’d argue that, at least at the appellate level, there’s another option. Instead of having judges go before the voters every six years for a retention vote, how about if they go before the legislature every six years for a similar vote? After all, judges, especially appellate judges, spend a lot of their time interpreting laws that the legislature wrote. Who better to decide whether they’ve done a good job or not? To prevent the votes from becoming merely a partisan removal process, only a 2/3 vote for removal in both houses would remove a judge from office. This would not, however, be like impeachment. There would be no trial; no specific allegations of wrong-doing. Rather, it would be akin to the reappointment of other state officials, like members of the coastal commission or the state water resources control board.
As for local judgeships, it does appear to me that there needs to be a way for better information to be made available to the voters about sitting judges’ performance, as well as the qualifications of those seeking election. Perhaps there could be, in each county, a nonpartisan judicial evaluation committee elected by the attorneys whose offices are in that county. The committee would be charged with doing an evaluation, prior to each judicial election, of the candidates. As with the evaluation of judicial appointment candidates, there would only be a limited number of ratings: less than qualified, qualified, well qualified, and perhaps very well qualified. The committee would also be responsible for compiling objective statistics for judges running for re-election. The information would be included in the voter information handbook.
Perhaps these suggestions are less than perfect, but they’re certainly better than the groping in the dark that voters now do.