Monday, March 28, 2011

The Proper Structure of the Judicial Branch

The current election for a spot to the Wisconsin Supreme Court, which (not shockingly!) has become intensely politicized, reminds me of some of my thinking about how to structure a judicial branch. One's first inclination is to say, "judges shouldn't be elected!" and indeed I don't think you go very wrong by adopting that approach. But I think my actual main feeling about how to set up a court system is a little different: no one one the top policy-setting court should have any opportunity to be concerned with having to keep themselves on that court. There are two ways to accomplish that: one is life tenure, and the other is some sort of fixed term with an absolute lifetime 1-term limit. The point is that you don't want justices on your court system's Supreme Court to be looking over their shoulders. I don't think you can avoid some political ambition influencing judges on lower court systems, because they will always be aspiring to appointment to higher courts, so I suppose I can't really object all that forcefully to re-appointment to lower courts. I'm not sure I see any reason for it, though, and I probably think that for a sitting judge to focus on re-election is a mistake. So, all in all, I guess I would say:
  • Judges on the Top Court should either have life tenure or a strict term limit. There should never be any opportunity to be re-appointed or re-elected to the highest court.
  • Requiring re-appointment of lower-court judges seems permissible, though probably not particular desirable as far as I can see.
  • Re-election of lower-court judges strikes me as deeply questionable.
  • I'm not that fussed how judges get onto a court. If you can be elected once but then never have to worry about facing the voters again, that strikes me as fine. However, I imagine there are various practical problems here; would there be elections only for open seats? So a judge would get elected to fill a vacancy and then serve for as long as they wanted with periodic re-appointment? It seems like an odd system, and I would probably prefer to keep elections out of it altogether.

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