I originally wrote this article on September 15th, which is Primary Day. This important date causes me to ponder the peculiar role that politics plays on the judiciary. In the interests of complete disclosure, I will first admit a potential source of bias in that I currently serve as the First Vice-Chair of the Nassau County Democratic Party.
That being said, I am also a practicing attorney for the past twenty five years and I can honestly say that I have never detected even a hint of bias or favoritism from any judge of any party to me or any client of mine because of my political affiliation. Moreover, I do not believe that I have ever witnessed political bias toward any attorney or any litigant as a result of political affiliation.
When I have been on the receiving end of some form of judicial displeasure it has invariably been as a result of my own actions (and to paraphrase President Nixon, “I deserved everything I ever got!”)
I believe in the democratic system, where our elected officials are held accountable to the electorate every few years. In the political realm I even believe that, after a number of years, even the finest of public officials can grow stale and it is not the worst thing for society to have some new blood, some new ideas.
In theory, therefore, elected judges are a good thing. Why shouldn’t judges be held to the same standards as other elected officials and be forced to make a case to the public for their election?
The problem is that sometimes things are not as simple as they initially seem. Political candidates are free to make their case to the public in any different number of ways; they can argue issues, they can attack their opponents. Most importantly, they can personally appeal to people to donate money to fund the campaign.
Conversely, judicial candidates cannot really argue issues, nor can they attack their opponents or solicit their constituents for donations. They may discuss their qualifications and say that they have been found “Well Qualified” by the Bar Association. However, the reality is that both of the major parties are now only running candidates who have good resumes and have been found “Well Qualified” by the Bar Association.
So how does the voting public decide? With the exception of family and friends, most people have absolutely no idea who they are voting for when they pull the lever in a judicial election. Practicing attorneys will go in to the voting booth and see names of people they have never heard of running for judge. At the end of the day, most people vote for judge based on Party Line, gender and ethnicity.
As a result of this, the public must rely very heavily on both of the political parties to only run qualified candidates and must also rely on the Bar Association to take very seriously their role in screening judicial candidates. Both parties have commendably agreed to abide by the decision of the Bar Association’s Judiciary Committee as to the qualifications of individual candidates. But the Bar Association itself must remain vigilant as to the nonpartisan nature of the judiciary committee. In my experience, the Bar Association is often loathe to turn down a sitting lower court judge who is seeking approval for a higher court. The result is that at times a lower court judge will be found ‘Well Qualified” for a Court they have never set foot in much less ever practiced in.
All of us, as practicing attorneys have known qualified, beloved judges who lost judicial elections because of the fickle nature of politics. Often they were replaced by individuals of significantly lower caliber. Regardless of the qualification of the victor, what was lost was the experience and temperament that can only be achieved through years of toiling in the vineyard of justice.
Both parties I believe are working toward a goal of a fair solution assuring the cross endorsement of qualified judicial candidates, hopefully that agreement will be made sooner rather than later.
Written by Bob McDonald, as seen in The Attorney of Nassau County