Tuesday, November 07, 2006

Let the Voters Decide

A week after Halloween, Election Day has finally arrived. A coworker of mine was recently naturalized after living in the U.S. for many years. He is thrilled to have the opportunity to actually vote. I disagree with him politically, but I am almost as excited for him as he is for himself. I would like to see more of that kind of enthusiasm among long-time voters.

One of the things that bothers me about our current system is the feedback mechanism we have for elected positions that have less public visibility. I think about elected judges, for example. How many of us have spent time in one of their courtrooms? I have served jury duty exactly three times during my life, and I have testified in court once. I have been to small claims court a couple of times. These experiences have given me a very limited view of a very few judges. How am I to know whether to re-elect a judge or not?

Well, I pop open my handy-dandy Utah Voter Information Pamphlet to Section C, where I find information about judges. For each judge there is a very brief bio along with a listing of responses to 15 questions by a random sample of attorneys that have appeared before the judge. The 15 questions differ depending on judicial level, and there are only 13 questions for district and juvenile court judges. You need to see pages 3-4 to see what questions were asked. For judges whose courts include juries, a random sampling of jurors answered 15 questions (page 4).

Most of the questions revolve around courtroom management and the appearance of fairness. Attorneys that practice before a judge can obviously be tainted by certain biases. For one thing, many of the attorneys work with the judge on a regular basis. It’s kind of like being a coworker. Am I completely objective about my coworkers? I don’t know. I don’t mean to offend anyone in the legal profession, but my limited experiences inside the courtroom haven’t inspired a great deal of confidence in the competence of attorneys that practice before those courts. In other words, I feel that the attorney answers need to be taken with a large block of salt.

For each question, attorney surveys allow the respondent to choose among a range of six possible choices from totally favorable to inadequate. Almost all judges receive ratings of 90% or higher totally favorable on each question, unless they have done something really bizarre, like get themselves in the national media spotlight as the epitome of a bad judge, like Leslie Lewis of the Third Judicial District (Salt Lake, Summit, and Tooele Counties), and then they receive at least a 70% totally favorable rating. From a statistical viewpoint, ratings like these are so skewed as to be meaningless. It means that our survey methodology (questions, study group selection, groupthink in interpreting questions, gathering method, etc.) stinks.

Juror surveys are also meaningless. Jurors only get two possible choices for their answers: yes and no. It’s a pass/fail thing rather than a grade. Almost no judge (even the notorious Leslie Lewis) received less than 97% yeses on any question. Again, from a statistical view, these responses are meaningless.

I don’t mean to imply that we don’t have great judges in Utah, but just as reality dictates that all students cannot be A students, reality dictates that not all judges can in reality receive a top grade. (We don’t live in Lake Wobegon, where all the children are above average.) But for most voters, the only information they have to make decisions about judicial candidates is the Utah Voter Information Pamphlet, which is woefully inadequate for that purpose.

Similar arguments can be made about some of the county positions regularly on the ballot (surveyor, treasurer, clerk, auditor, etc.) Most voters just don’t have access to enough information to make an informed decision. Sure, we could all attend all of the city and county meetings, and we could go sit in the galleries of courtrooms, but who has the time for that?

Some claim that the answer to this problem is to remove these officials from the ballot and make them appointed by the executive. The argument goes that we allow the President to select important offices like U.S. Supreme Court Justices, Attorney General, Secretary of Defense, Secretary of State, etc. All they need is for the Senate to confirm the executive’s choices. Why shouldn’t this same pattern work for every level of government?

I wholeheartedly disagree with this type of thinking. The best way to hold public officials accountable to the people is to make them occasionally stand for election. Do we want these officials to be accountable to the people or to the oligarchy? I don’t want a county auditor or sheriff that is beholden to the county commission. I want them to be accountable to the people of the jurisdiction they serve.

No, the answer is not to remove voter choice. The answer is to find a mechanism for providing better information to voters. Good government is partially the result of well informed voters.


Anonymous said...

Last paragraph: well said.

On a similar note, I believe that the US Supreme Court justices should be held to this or a similar program. If not that, then at least a mandatory retirement age, taking away the political excercise of "retiring" at the most fortuitous moment.

I think no one will argue that Dubya's most effective and lasting legacy will be the appointment of two conservative judges during his "presidency".

Scott Hinrichs said...

A study of historical documents reveals that the Founders did not anticipate the political influence of the judiciary. Nor did they ever consider the possibility of a Supreme Court justice serving for two decades or more.

People would have to achieve a certain stature before being appointed to the court, and by that time they would only have a handful of productive years left, thus, creating a natural term limit. I think the Founders would be appalled today to see justices serving for decades. Some kind of term-limiting mechanism could only lead a better situation.

Bob said...

It's funny that you mentioned Lake Woebegon, as I was thinking the same thing.

Of course, my only real experience inside a courtroom was on my mission, in Minnesota...


Anonymous said...

I wrote about this same topic three days ago. I wholeheartedly agree on both points. The system is correctly set up in letting the voters have a voice in these matters but it is flawed a the lack of useful being widely available. The little bit we get in the voters guide is drastically insufficient.

Anonymous said...

yes, and not only appalled to see them serving decades, but seeing the machinations that manipulations that go into the decision of when to retire...

another one of those political footballs...

Charles D said...

I would prefer a system where the Governor appoints state judges with a ratification by the State Senate and then after a few years of service, they have to stand for election. The vote is simply up or down. If the judge wins, they get a lifetime appointment. If they lose, the Governor appoints a new one, etc.

Scott Hinrichs said...

Bob, that sounds like an interesting story. Do you care to relate more about it?

Anonymous said...

I couldn't agree with you more on your concerns about judicial elections and elections of county officers.

If county officers such as the assessor, the treasurer, the clerk/auditor and even the surveyor answer only to a few elected commissioners or a county supervisor they can lose much of the independence that serves as a measure of protection to citizens of the county.

An easy example of how a problem could arise would be if the assessor could be leaned on by the commissioners to artificially increase the value of new construction or to alter increasing property values the county could get a tax increase without any political fall out for the commissioners/supervisor.

We definitely benefit from the independence of these county officers even when they run unopposed.

Anonymous said...

watch utcourts.us, change is coming the hard way.