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December 24, 2004


Final thoughts on Maag, and next month's discussion

Finally, I do want to note that I think the entire Maag-Karmeier race shows just why we shouldn't popularly elect our judges. Politics comes into the appointment process too, of course, but it's simply impossible to explain to the general public in political soundbites reversals and remands, the exclusionary rule, the sixth amendment right to confront a witness, or the fourth amendment protections against illegal searches. Ted reminds me that such issues can confound journalists, who we presume to be better informed than the average voter: "A good example of this was the Bork hearings, where Bork was forced to describe basic Fourteenth Amendment jurisprudence, and his neutral descriptions of such things as the 'compelling interest' test made lay journalists think he was a madman."

In addition to the inability to explain legal doctrines in a political campaign, there is real potential for corruption. And such corruption is extremely dangerous: We expect self-interested factions to try to attempt to influence legislators -- hopefully neutralizing each other, as Madison suggests in The Federalist Papers -- but when judges become susceptible to outside influence, and our neutral, impartial arbiters of the law become the arms of interest groups, we threaten the very rule of law itself.

So, what's to be done? Well, David Rottman at the National Center for State Courts has done a lot of interesting research on judicial election and appointment systems, as has Alex Tabarrok of George Mason University and the weblog Marginal Revolution. They'll be here next month for our newest featured discussion, "Elections and Selections." Stay tuned!

Posted by James R. Copland at 08:21 PM | TrackBack (0)



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