THEIR VIEW: Merit selection for judges? Not so fast

By The West Virginia Record | Apr 9, 2009


Henry Kissinger said, "90 percent of the politicians give the other 10 percent a bad reputation."

We often have a low opinion, and therefore only a modest expectation, of our politicians, but what happens when the politicians are judges or judicial candidates?

The judiciary, while equal to the other two branches of government, is different. We elect politicians to the executive and legislative branches as representatives of the people, but judges are supposed to be independent arbiters of the rule of law, beholden to no particular group or interest.

There's an ongoing debate in West Virginia - and across the country - about whether judges should be elected or appointed. The controversy kicked up in West Virginia in 2004 when Brent Benjamin was elected to the state Supreme Court.

Benjamin won, in part, because Massey Energy CEO Don Blankenship spent several million dollars of his own money attacking Benjamin's opponent, sitting Justice Warren McGraw.

Critics howled that Blankenship's money and attack ads tipped the election, setting off the nationwide debate, creating discord on the high court and causing some to wonder if the reputation of the judiciary was being damaged.

Many simply asked the question: Is there a better way?

Some want to reduce the influence of money through public financing of elections. Others say judicial elections should be nonpartisan. And still others argue that judges should be picked based on merit and not forced to campaign and ask people for money.

Now Gov. Joe Manchin has issued an executive order establishing an "independent commission of former attorneys, academics and other professionals to examine the State's court system" and make recommendations.

Manchin has charged the panel - which has not yet been appointed - with studying the need for reforms "including, but not limited to, adopting a merit-based system for judicial selection, enacting judicial campaign finance reforms or reporting requirements, (and) creating an intermediate court of appeals."

Other states already have adopted merit systems and created intermediate courts so this commission will have a body of work to pull from. But it won't find any perfect system.

Merit selection may take the appearance of politics out of the process, but instead of a public election where the voters choose, the candidates will maneuver behind the scenes in hopes of winning favor with an individual or panel that will decide.

Campaign finance reform is loaded with problems. The national experience has shown that attempts to cap spending are like squeezing a balloon; the money will find another route to the campaign. In addition, there are serious Constitutional questions about campaign spending controls.

An intermediate appellate court in West Virginia would, theoretically, make it easier for a litigant to have their case heard thoroughly, thus ensuring more confidence in the justice system. But it would be expensive to adopt an entirely new level of courts.

Despite all the hand wringing, I'm not sure the courts here are as "broken" as some clamoring for reform say they are.

For example, in last year's election, voters decided they didn't like a state Supreme Court Justice hanging around with a coal executive who had cases before the court, so they voted Spike Maynard off the bench. Larry Starcher, another controversial member of the court, decided not to run for re-election.

Since then, the high court's high drama has been replaced by a calm professionalism. So, the system, with the public watching and voting, sorted itself out.

There might be a better way to pick judges, so an independent study is worthwhile. But before we rush to some "new and improved" system, we should consider the benefits of what we have -- potential judges standing before the people, telling us who they are and why we should have confidence in them.

Sure, there will be some politics and money involved, but the power ultimately rests with the people to decide.

Kercheval is vice president of operations for MetroNews and the host of Talkline, which has become a signature program of the network.

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