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Judicial Elections Are Stupid

March 25, 2008 11:15 PM

ven before I went to law school, it seemed to me that electing judges--the people in our system that are most supposed to make decisions based on something other than what they happen to believe personally--is stupid. The federal system, at least as it was explained to me in sixth grade, made a hell of a lot of sense: in a representative democracy, you have to strike a balance between giving the majority what it wants and protecting the rights of the minority. Electing the legislature makes sense, then, because it means that the people that write the laws are, at least theoretically, directly responsible to the People. Write laws we like and you keep your job; don't and you don't. Electing the President also makes sense, since he enforces the laws the legislature makes and is the face of the nation in many respects. Having taken care of the majority, we then turn our attention to the hapless minority: how do we ensure that they are protected. In steps the judiciary. The fact that they're selected by the President and approved by the Congress means that they receive, albeit in a roundabout sort of way, the approval of the People. On the other hand, the fact that they are not directly elected and have life terms means that they are free, at least in theory, to make decisions based on the law and, above all, the Constitution. Where Congressmen regularly shovel pork into their home districts in order to gain favor with their constituents and the President has to be mindful of opinion polls if he wants a second term, the judges in the federal system are free from those concerns.

That makes sense to me. It seems like an exceedingly good idea to me. What makes absolutely no sense to me at all is to throw the whole judiciary to the wolves and just have the whole thing work in the exact same way as the detestable elections we've all come to know and--well, we know them, anyway.

Senators and Assemblymen don't have a duty to be impartial. To the contrary, it is their duty to represent the interests of the people that elected them. You are allowed to propose legislation that benefits your constituents to the detriment of people outside of your district. You are allowed to be vehemently and absolutely against criminal defendants, gay people, the UW Law School, or guns. We elect our representatives because we believe that they represent our own interests, at least to some degree. Same goes for the Governor.

But the job of a judge is fundamentally different. It's not that all good judges would reach the same conclusions--there's certainly plenty of room for differing interpretations and opinions. But judges, at least ideally, shouldn't be vehemently and absolutely against criminal defendants, gay people, the UW Law School, or guns. Rather, judges should approach each case with an open mind and, above all, remember that the best judges are those that bring nothing but their intelligence and legal skill to the case at hand.

Moreover, it is crucial that judges be able to issue decisions based on the facts and the law, not out of fear of how their decision could be used against them in a future election. It will always be unpopular to overturn a known murderer's conviction because of a "technicality," but in instances where police willfully violated the Fourth Amendment, that is the only proper decision.

As I said, I've thought that electing judges is stupid for a long time. I was convinced my position was correct after Annette Ziegler--rather than Linda Clifford--became the newest Wisconsin Supreme Court. But I'm reminded of it again now that Justice Louis Butler and Judge Michael Gableman are running for the Supreme Court. The ads I've seen on TV are emblematic of the problem with the whole judicial-election thing. Here's an anti-Butler one:

To be fair, Judge Gableman's campaign did not pay for that ad, but that doesn't make it any less ridiculous. What does it mean to say that a judge should "stand up for victims, not technicalities," anyway? Would the ad's writers have Justice Butler write opinions like this: "Well, there are some technicalities here, but I'm pro-victim, so we can forget about the Constitution and stuff."

I looked up the case the ad refers to. It's State v. Jensen, 2007 WI 26, Wis. 2d 267, 727 N.W.2d 518. (Brief aside: God, it feels so good to write out a complete, correct citation again.) The issue is fairly complicated, but it comes down to whether there is an exception to the Sixth Amendment, which guarantees a criminal defendant the right to confront witnesses against him, when the witness is unavailable because the defendant killed her. The majority finds that there is, and Justice Butler disagreed. I disagree with Justice Butler's conclusion, too, but that doesn't change the fact that he had solid legal reasons for believing--and voting--as he did. And it absolutely does not justify dismissing one of the rights guaranteed to us by the Bill of Rights as a "technicality."

Ultimately, I understand not wanting an entire branch of the government that answers to no one. But an unelected judiciary does not have a blank check. Moreover, judicial elections run counter to the whole idea of the judiciary--if you wanted elected interpretors, why not just have the legislature interpret their own laws?

Anyway, the whole thing is stupid.



8 Comments


estefanita said:

yea...thanks for the break down of the election process. lately i have been explaining it to the frenchies, because they find it unfair, and your blog gave me some more details i had forgotten about. thnx

March 26, 2008 4:43 AM



Who? said:

Dear sir,

I think the comma should not have been italicized in the above citation.

March 26, 2008 9:27 AM



tRJ said:

Just to clarify: the issue is whether Jensen forfeited his Sixth Amendment confrontation rights by killing the witness he needed to confront (that's what you said, I'm just rephrasing).

And I agree that Butler had sound reason for dissenting. The ad is quite misleading by saying he voted for a technicality.

March 26, 2008 9:31 AM



Ismael Tapia II said:

estefanita,
What do they think is unfair about our system, and is theirs more fair?

Who?
Nice try, but no cigar. The commas in my citation are appropriately nonitalicized. For some reason, the commas in this font appear to be italicized when they aren't. For your consideration:
Italicized: ,
Not italicized: ,

Hope that clears things up.

tRJ,
Thanks for adding some clarity.

The ad is misleading, and that just goes to show why I think these elections are stupid things to have: you can't break down judicial decisions to pro- or anti- sorts of positions. I mean, granted, it doesn't make much sense to say that a certain congressional candidate voted to increase taxes 97 percent of the time or whatever, but I think it's even more misleading in judicial elections.

March 26, 2008 7:32 PM



TheExpat said:

There is nothing more infuriating to me than anti-rationalist arguments that throw the baby out with the anti-freeze, especially in the context of political attack ads. If he killed the witness and there's sound evidence of it, isn't the guy fucked one way or another to begin with? Seems like the fallout would include him getting brought up on similar charges toward the witness. Forgive a layman, but I don't see how a dissention from even a majority of the justices does anything but postpone the inevitible for Mr. Jensen.

March 27, 2008 8:27 AM



Ismael Tapia II said:

I guess I didn't make this clear. Mr. Jensen killed his wife, and his wife is the witness whose statements the prosecution wanted to admit.

The facts go a little something like this: Julie Jensen seemed to fear that her husband was going to kill her. Instead of doing the sensible thing--run--she decided that she was going to do something sort of wacky: she left a letter with her neighbor with instructions that, should anything happen to her, the neighbor should turn the letter over to police. The letter basically said that if she was dead, her husband killed her. She also left messages on a police officer's voicemail implicating her husband, and made several comments to her neighbors and other people.

The prosecution wanted to admit all of these statements, obviously, but there are two problems with that. The first is the aforementioned Sixth Amendment. The second is the rule against hearsay--in general, someone's out of court statements are not admissible as evidence. As I understand the decision--after a fairly quick read--the majority of the court decided that some of the statements were barred by the Sixth Amendment because they were "testimonial" (I'm not going to explain what that means because no one knows. Really.). Other statements were not testimonial and, therefore, not barred by the Sixth Amendment. In any event, the court adopted an exception to both the hearsay rule and the Sixth Amendment called forfeiture by wrongdoing, which means that the defendant can't object that he can't confront the witness if he's the reason he can't confront the witness.

Justice Butler objected to the application of this exception in instances where the defendant was accused of murder. Basically, his argument is that, in order for the forfeiture by wrongdoing exception to apply, the defendant must have done something which he intended to make the witness unavailable to testify at trial. The common example would be a mob boss intimidating witnesses. In instances where the underlying crime--in the mob boss example, something like ordering a hit on a rival mob boss--and the crime causing the unavailability of the witness--something like putting a horse's head in their bed or whatever--are different, then it's clear that the intent behind the second crime was intimidation. But, where the underlying crime also caused the witness to be unavailable--as happened in the Jensen case--the defendant probably didn't intend to make the witness unavailable. He probably intended to make the witness dead.

It's a thin distinction, but one that seems to have existed at the time of the adoption of the Sixth Amendment. Also, as Justice Butler points out, expanding the forfeiture by wrongdoing doctrine to cover situations like those in Jensen makes another hearsay doctrine, dying declarations, completely redundant. Since we assume that our law isn't stupid, there must be some reason for both doctrines to exist.

I rely on my legally knowledgeable friends to correct any mistakes I've made.

And Justice Butler's reasoning makes sense in at least one way. Remember that in a criminal prosecution, the State has to prove the defendant's guilt beyond a reasonable doubt, and in most cases to a jury. Under the forfeiture by wrongdoing doctrine, though, the State merely needs to prove to the judge that the defendant probably caused the witness's unavailability. The standard is much, much lower, and it's the judge that makes that determination. In cases like Jensen, where the evidence the State wanted to present was almost certainly determinative of the outcome, that means that the State essentially only has to prove that the defendant probably did it to the judge, rather than proving he almost certainly did it to a jury of the defendant's peers.

Cases like Jensen are hard not only because they're legally complex but because the arguments can seem kind of stupid and it's easy to lose sight of the interests at issue. It's easy to say that we should relax certain rules in cases like Jensen because the defendant is extremely unsympathetic and because it seems extremely obvious, on a common-sense basis, that he's guilty. But the law--fortunately--isn't based on what seems like a good idea according to common sense. The establishes rules and the extreme protection of a defendant's rights might make the least sense--or, indeed, seem downright stupid--in cases like Jensen. But the important thing is to remember that the fact that the court is willing to go to extraordinary lengths to make sure that Mr. Jensen's rights are protected means that the system in general is more likely to protect your rights if you ever find yourself accused of a crime.

Ultimately, I'm not sure how important these statements were. The commercial says that the jury said they were the most important piece of evidence they saw. Ok, sure. But that doesn't mean it was the only piece of evidence. No murder is perfect, and I'm sure that there was a lot of other stuff that implicated Mr. Jensen. If there wasn't, then the concerns Justice Butler brought up are even more compelling: I don't know about you, but I don't want to be convicted of murder simply because someone that hates me dies and leaves a note implicating me in their death out of spite.

March 27, 2008 9:15 AM



estefanita said:

bravo! you should write more stuff like this! so the frenchies think the electoral college (sorry if that is not how it's spelled) is unfair as their elections are based on simple majority. after explaining how the system was set up to keep wealthy states from controling the other ones, they seemed to understand but i feel a further explanation of our checks and balances would shut them up for good. unfortunately the last time i studied all that was either with heathman or thompson. and you know full well what i was up during that time......it's a wonder i retained anything i learned in that period.
so write more good stuff like this and i can steal from you and sound all smart and stuff....not hard as i have actually had conversations where people used prison break and desperate housewives as a source for their arguments.

March 27, 2008 4:09 PM



TheExpat said:

Thank you, Ismael, for setting it straight. So the victim was the witness...that muddies things up, eh? I hope that there was significantly more evidence than just this disputed letter to influence all but one judge to accept it as evidence against the accused. Otherwise, the reality the commercial paints for me - one of a bunch of gut-following cowboy judges - is more than a little disconcerting.

March 28, 2008 12:35 AM



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