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America's Debate > Archive > Policy Debate Archive > [A] Domestic Policy
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Lesly
A Republican minority and later majority denounced litmus tests for judicial appointments. With Miers’s nomination the coagulated veneer keeping conservative factions together cracked almost overnight. Conservative “elites” are put off by an ostensibly absent judicial philosophy throughout her career. Despite a 1989 questionnaire and colleagues vouching that Miers will vote Roe down social conservatives peevishly behave like they want a promise etched in stone. The White House strategy hasn’t helped. Slate’s court correspondent Dahlia Lithwick tracks the many faces of Harriet Roe.

In the same vein, another Slate article follows up on Harriet’s questionnaire starting with a 2002 USSC decision “forc[ing] states to loosen... rules" that "prevent judicial candidates from campaigning like ordinary politicians” in light of judicial ethics codes (Republican Party of Minnesota v. White). Scalia agreed with the majority, writing "[E]ven if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so."

According to the article “87 percent of America’s 11,000 state judges” are elected into office and “smart interest groups immediately used White to begin demanding public answers from reluctant judges.”

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In the wake of White, questionnaire answers are also helping determine which judicial candidates can tap into big money, powerful endorsements, and platoons of grass-roots support: In a single Illinois Supreme Court race last year, candidates raised $9.3 million—exceeding 18 of 34 U.S. Senate races—much of it from lawyers and interests with cases before the court.


Some of the questions judges receive include:

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Are you a born again Christian? Please give your testimony.

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What actions have you personally taken on the issue of pro-life?

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In 2000, Alabama's Christian Coalition asked all judicial candidates to agree with the following statement: "Leaving aside entirely the relevant U.S. Supreme Court and/or Alabama Supreme Court precedent about the legal status of an unborn child, I as an individual believe that an unborn child is a fellow human being, imbued with a soul by its Creator."

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Idaho's Christian Coalition pressed would-be judges to agree with their statement that "God's Laws or Natural Laws have a high[er] authority than laws enacted by the United States Congress or the Idaho Legislature"; that "the United States Constitution is Christian-based"; and to agree to display the Ten Commandments in their courtroom.

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A 2003 Pennsylvania Catholic Conference survey asked judges to state positions on abortion, cloning, stem-cell research, gay adoption, and insurance coverage for contraceptives

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The anti-tax Nevadans' Judicial Information Committee included a boilerplate question about the public-service records of potential judges but cautioned that "too much 'feeding at the public trough,' however, may sometimes bias a candidate's philosophy toward 'public' rather than 'private' solutions to society's problems."


In Kentucky, the state high court will allow “campaign statements that appear to commit judges to positions in advance of a case being heard.”

Questions for debate:

1. Does holding judges accountable to the people through elections have a positive, negative, or no affect on an independent judiciary?

2. Do parties endorse, defend, or at least accept the idea that judges should rule based on the law and merits of the case before him/her and not on his/her personal feelings of the case?

3. If you answered yes to #2 or give YOUR party kudos, how do questionnaires gauging a judge’s personal feelings on everything from a religious experience (or lack thereof) to abortion uphold the public’s perception that our justices set their beliefs aside on the bench?

4. We’re used to politicians saying/promising anything to special interests to get elected. Are these questions inappropriate when applied to the judiciary?
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Doclotus
1. Does holding judges accountable to the people through elections have a positive, negative, or no affect on an independent judiciary?
Ideally, yes. But the reality is that when people are casting ballots in a November election, it is rare that someone educates themselves enough about judicial candidates for such an ideal to be enforced. A rare exception might be elections for the state supreme court, if a particularly unpopular decision is rendered then the incumbent status of the candidate might influence the vote. The reason most judges get elected at the state level is party affiliation, in my opinion. I'd be interested to find some statistics on that, however.

2. Do parties endorse, defend, or at least accept the idea that judges should rule based on the law and merits of the case before him/her and not on his/her personal feelings of the case?
Conceptually yes, but are you separating rhetoric from reality? Or perhaps that's the point. The disparity between the Roberts nomination and Maiers is a good example of the hypocrisy behind the rhetoric. In reality, they want someone to interpret it based on the law, but only if it sides with your point of view.

3. If you answered yes to #2 or give YOUR party kudos, how do questionnaires gauging a judge’s personal feelings on everything from a religious experience (or lack thereof) to abortion uphold the public’s perception that our justices set their beliefs aside on the bench?
It doesn't and that is part of the problem. The state questionnaires typically are torn from party surveys and really have no place in a judicial inquiry.

4. We’re used to politicians saying/promising anything to special interests to get elected. Are these questions inappropriate when applied to the judiciary?
Absolutely. If the questions had a more specific context to judicial scope and focus on the state or federal constitution, I think it would be acceptable. An example of such a question might be "Do you believe there is a fundamental right to privacy in the constitution? If so, where is it derived from?" The answer itself does not telegraph a case verdict but does help deliver some insight into that candidates judicial philosophy.

The problem, especially at the state level, is that politics and law are inseparable. I experienced that first hand while in college clerking for one of the largest firms in Texas. Every major attorney there was extremely active in politics, and thus it came as no suprise when they received an appointment to a circuit court or ran for a particular judicial post on a given party's ticket. With our current 2 party system and the state of the judicidal system, the concept of a truly independent judiciary is a myth.

Doc
ConservPat
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1. Does holding judges accountable to the people through elections have a positive, negative, or no affect on an independent judiciary?

It would have a negative effect for a few reasons. Number one, judges aren't accountable to the people, they're accountable to the law, elections would bring about the creation of what I like to call, and what all major news networks and most other people will be calling, "pop law" [I want a nickel everytime you say that]. Second of all, it would make judges politicians, and God knows we don't need any more of those people. Think about all the corruption and problems [big business lobbying for candidates and giving money to pro-business candidates, etc., etc.] and take all of that and put it into the justice system, that should be horrifying to people.

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2. Do parties endorse, defend, or at least accept the idea that judges should rule based on the law and merits of the case before him/her and not on his/her personal feelings of the case?

The two major parties are very similar in their complete disrespect for the law. The Republicans pretend to care about the Constitution and claim to want "strict constructionists" on the bench, but never appoint them. Democrats, on the other hand, don't even pretend to care about judges respecting the law, and appoint accordingly.

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4. We’re used to politicians saying/promising anything to special interests to get elected. Are these questions inappropriate when applied to the judiciary?
See above.

CP us.gif
Victoria Silverwolf
1. I think that judges at all levels should be appointed rather than elected. (There should be ways to remove judges from office who are clearly corrupt or incompetent, of course, but I would hope that this would be very rare.) A judge should be, more than anything else, a professional. Electing a judge seems to make almost as little sense as electing a coroner (which still happens some places.)

Let's consider our two most recent nominees to the United States Supreme Court. Nobody claimed that John Roberts was anything other than a highly skilled legal professional; many have claimed that Harriet Miers may not be. It seems fairly clear to me that popular elections will result in many more judges like Miers than Roberts. As long as there is a requirement that appointed candidates for judicial offices must be approved by a legislative body, in the way that the United States Senate must approve such candidates, I think that we will have more highly qualified judges.

2. Well, I'm sure that all political parties will claim that they want judges who will rule on cases based on the law rather than on personal politics. The problem is really with groups other than political parties. As seen in the examples of questionaires provided to candidates, special interest groups want judges who will rule the way they see fit.

3 and 4. These questionaires are utterly grotesque. First of all, to ask any candidate for any office about her religious beliefs is contemptible. Secondly, asking a judge how she will rule in certain cases is as ludicrous as asking a coroner how she will determine causes of death in certain cases.
Lesly
QUOTE(Doc)
1. Does holding judges accountable to the people through elections have a positive, negative, or no affect on an independent judiciary?
Ideally, yes. But the reality is that when people are casting ballots in a November election, it is rare that someone educates themselves enough about judicial candidates for such an ideal to be enforced.

I disagree with you, and agree with CP. Judges are accountable to the law. Politicians are accountable to the people. Why bother with a judiciary at all as a third rubber stamping populist branch? That is exactly what interest groups want, a castrated judiciary.

QUOTE(Doc)
A rare exception might be elections for the state supreme court, if a particularly unpopular decision is rendered then the incumbent status of the candidate might influence the vote.

I would nominate moderate to liberal justices, but there’s no guarantee their rulings will vindicate my preference. That’s as it should be. If you need a reason to nominate them or vote for them, your best measuring stick is judicial philosophy instead of labels like pro-choice and experience speaking in tongues. Even then expect disappointments.

In this not too distant debate liberals and conservatives alike couldn’t believe the Washington supreme court “usurped” the right of Washington parents to eavesdrop on their kids. (For more disbelief read the takes on TalkLeft.) Jaime correctly pointed out that the justices reversed Oliver Christensen’s conviction because according to Washington law, the mother acted as an unauthorized police agent. Unpopular decisions like this one, even if overruled by a USSC that may side with federal wiretap statues, is not indicative that the Washington supreme court ruled incorrectly. Voter backlash could conceivably unseat qualified Washington supreme court candidates in a non-partisan election (as in Idaho and Nevada) for the legislature neglecting to consult with their crystal ball before writing the state’s privacy law.

QUOTE(Doc)
The reason most judges get elected at the state level is party affiliation, in my opinion. I'd be interested to find some statistics on that, however.

I don’t have a percentage but I’d rather a red state consistently appoint conservative justices and restore dignity to the branch. Contrary to religious PAC rhetoric that so far has allowed the faithful to stay under the radar when they boast they want to impale instead of impeach justices, judges are supposed to be reclusive, bookish, doddering old “fools.”
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