Louisville Magazine

MAR 2012

Louisville Magazine is Louisville's city magazine, covering Louisville people, lifestyles, politics, sports, restaurants, entertainment and homes. Includes a monthly calendar of events.

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Page 64 of 116

F lippancy aside, how judges become judges is a serious issue. Whereas federal judges are appointed, 39 states elect some or all of their district, circuit and appellate-court judges, including state Supreme Court justices. Only 11 states, largely in the Northeast, choose judges solely by appointment. All Kentucky judges are chosen through nonpartisan elections. (Te U.S., by the way, is the only country that elects judges, a practice begun after the 1828 election of President Andrew Jackson, who persuaded states to begin electing their judiciaries.) Nationally, the elected-vs.-appointed debate is not new, though it seems to be getting more attention lately. It's often framed as a liberal (appointment) vs. conservative (election) thing — particularly when it involves issues such as abortion, taxes, tort reform and health care. Te arguments are straightforward. People in the pro-election camp see voting as a keystone democratic value and say lifetime judicial appointments make bad judges unaccountable and untouchable. Turning the selection process over to individuals or commissions, they add, will only shift the political dynamic, not remove it. Te appointment camp says judges with one eye on the political import of their decisions may pull their punches. Tey also worry about judges soliciting campaign donations from the very lawyers who appear before them in court, and they're alarmed by increasingly expensive judicial races that are sometimes fueled by special interests focused on hot-button social and business issues. Add a few recent developments — the Citizens United case, in which the U.S. Supreme Court removed campaign spending limits for corporations and unions; Caperton v. Massey Coal Co., the West Virginia case in which a litigant bankrolled a successful campaign to oust a Supreme Court judge who was perceived as unfavorable to the litigant's case; or the situation in Iowa, where three Supreme Court justices were booted because of a ruling upholding same-sex marriage — and the dread of anti-election forces kicks up a notch. Toss in rapid spending increases — only $2 million was spent during the last decade in retention elections (in which the public votes to retain or dismiss a sitting judge), according to the Brennan Center for Justice at New York University Law School, while $3 million was spent in 2011 alone — and the advocates rest their case. Tey have seen the future, and it is not pretty. Luke Milligan, an assistant professor at the University of Louisville's Louis D. Brandeis School of Law who favors appointment, believes perception is an overriding factor. "I think it puts stress on a democracy if people start to be insecure about the impartiality of their judges," he says. "(Te debate) is framed as, which provides more qualified judges, but I think that misses the mark. I think there are two questions: Which provides the best judges and which provides the strongest perception of fairness. Tere's a good healthy debate on the first question, but not on the second. Tere is consensus that elected judges are perceived as less fair. If a judge is perceived as biased . . . he or she won't be very good at providing effective conflict resolution." Milligan's views were shaped in part by a notorious California case that began a decade ago, when a jury convicted a couple of murder after their dogs mauled a women in 2001. James Warren, the (elected) San Francisco judge who presided over the original trial, maintained that the jury misapplied the law and downgraded the verdict to involuntary manslaughter. Milligan, who had interned for Warren (the grandson of former "People are not raising money for the Supreme Court of Ohio because they like the people running," says attorney Sheryl Snyder (above). [62] LOUISVILLE MAGAZINE 3.12 U.S. Supreme Court Chief Justice Earl Warren), admired the judge's courage in the face of public criticism, which eventually forced Warren into retirement. "He became unelectable," Milligan says. "Tat made an impression on me. I was proud of him for doing what he did. It was something you'd see (an appointed) federal judge do but not (an elected) state judge." Te movement to eradicate judicial elections includes some

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