THEIR VIEW: Keep judges on the ballot

By The West Virginia Record | Sep 25, 2009


MORGANTOWN -- An election is an exercise that flexes the muscle of democracy. It is the reminder that the government's legitimacy is derived from the consent of the governed.

True, elections are often contentious, messy, expensive, imperfect and exasperating, but that does not mean we West Virginians should willingly abrogate our power to choose judges through elections.

Currently, the Independent Commission on Judicial Reform is holding hearings throughout the state on the question of whether the state should forgo judicial elections and replace them with appointments.

Those who favor the change say appointing judges would take politics and money out of the process. They also believe appointed judges would be free from the natural conflicts of interest that come with raising campaign money.

There is also the not so subtle suggestion that appointments would produce a better brand of judge. Frankly, that argument has an elitist ring: "The rubes who vote cannot possibly know who would make a good judge, so we'll just handle that responsibility for them."

University of Pittsburgh Political Science Professor Chris Bonneau has researched judicial selection. He presented arguments to the ICJR this week in support of keeping judges on the ballot.

Elections, Bonneau argued, keep judges accountable to the public, but independent from other branches of government. The appointment process would mean the governor gets the final say -- the executive branch holds sway over the judiciary.

Bonneau cites the defeat of state Supreme Court Justice Spike Maynard in 2008 as an example of how elections work. Photographs surfaced of Maynard vacationing with Massey Energy CEO Don Blankenship, whose company had cases pending before the court.

The public didn't like what they thought was a conflict of interest and they voted him out of office. If Maynard had been appointed, Bonneau argues, Maynard likely still would be on the court.

Bonneau's research shows judges are nearly always kept on the bench in retention elections typically held for appointed judges. From 1990-2004, only three out of 231 incumbents were defeated in retention elections.

Much of this talk about judicial appointments stems from the controversy in the 2004 election when Blankenship spent several million dollars of his own money to defeat incumbent Democrat Warren McGraw and, thus, help Republican Brent Benjamin get elected.

Yes, that raised obvious questions of conflict of interest and eventually Benjamin was forced to recuse himself from Massey cases, even though he maintains -- and his voting record bears out -- that he can remain independent in Massey suits.

But Blankenship's spending and the campaign against McGraw were all flushed out in public.

The money spent on judicial elections that is so often decried by advocates of appointment actually increases voter participation, Bonneau found. That means the more candidates and interest groups spend on judicial elections, the more voters learn about the candidates and the more likely they are to cast an informed vote.

Admittedly, appointed West Virginia judges may do an outstanding job. Certainly those receiving the appointments would appreciate that they don't have to suffer the rigors of the campaign trail.

But campaigns put judges and potential judges in front of the people who can decide the worthiness of someone to serve.

The current system is imperfect, but it is democratic. Judicial appointments are no panacea. West Virginians should hold on to the power vested in them by the state Constitution.

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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