THEIR VIEW: Reform needed in choosing judges

By The West Virginia Record | Jan 8, 2009


CHARLESTON -- At a meeting of the National Governors Association in Washington last winter, Gov. Joe Manchin was reportedly in the company of former U.S. Supreme Court Justice Sandra Day O'Connor who, the word is, shared unflattering observations about the reputation of West Virginia's courts.

Whatever she said to him, the governor came home committed to changing the way judges are chosen in our state.

Without fairness, Manchin said, "employers won't come to the state." Non-partisan judicial selection, he maintains, "is a step in the right direction."

Madam Justice O'Connor, in a letter to the West Virginia Legislature in September, wrote "it has been shown that voters that elect judges through partisan elections are more cynical about the courts, more likely to believe that that judges are legislating from the bench, and less likely to believe that judges are fair and impartial."

Her recommendation to Mountain State lawmakers: "if contested judicial elections are to continue, they should be made non-partisan. Judges should be fair and impartial, with allegiance to the law rather than to a particular political party."

It seems the public shares her view. A recent Harris survey commissioned by the American Bar Association found that 43 percent of those polled prefer non-partisan election of their judges, compared with just 12 percent favoring partisan judicial elections.

Another 20 percent want their judges appointed, a difficult reform in West Virginia as a Constitutional amendment would be required. A mere legislative act, however, could change the state code to take party politics out of our process of electing judges.

Let's hope that when the Governor delivers his State of the State address in a few short weeks, non-partisan judicial elections will be part of his legislative agenda.

Let's hope that lawmakers will embrace Justice O'Connor's prescription for strong, independent, impartial courts which apply the law through a lens of complete neutrality, free of partisanship. Especially since justices on the West Virginia Supreme Court serve 12-year terms, circuit judges eight.

Researchers have concluded that legal systems are regarded with higher integrity in states with non-partisan elections.

Consider, too, the scholarly analysis of Professor Alex Tabarrok of George Mason University. He studied verdicts in 75,000 civil lawsuits across the U.S., concluding that in states with partisan judicial elections, damage awards are 40 percent higher than in states where judges are chosen on a non-partisan basis.

West Virginia is testament to that. In a recent year, three out-of-state employers were collectively saddled with verdicts in our courts totaling more than a billion dollars. One of those firms abruptly ditched plans to expand in our state with hundreds of new jobs and a projected payroll in the tens of millions of dollars.

Across the country, nearly a third of the 20 largest lawsuit awards in 2007 and four of the ten largest awards were handed out in the eight states that choose their judges through partisan elections.

Take into account as well that the eight states with partisan judicial elections are among the lower half of all states in attracting jobs and among the group of states with the highest unemployment. They are also in the bottom half of states for per capita income.

The advice of Justice O'Connor caught the governor's attention. With his leadership, and the support of senators and delegates, West Virginia can, indeed, take that step in the right direction.

Cohen is executive director of West Virginia Citizens Against Lawsuit Abuse.

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