Virtuous judges and electoral politics: a contradiction?

• Author: Failinger, Marie A.
• Position: Perspectives: Judicial Elections Versus Merit Selection

Judge Thomas J. Spargo serves as a fascinating poster-child in the debate on what's wrong (or right) with judicial elections. Judge Spargo, campaigning for re-election as Justice of the Berne Town Court in upstate New York, was accused of "failing to observe the high standards of conduct" expected of a judge, as well as:

fail[ing] to avoid impropriety and the appearance of impropriety, fail[ing] to respect and comply with the law.... fail[ing] to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary ... to maintain the dignity appropriate to judicial office and to act in a manner consistent with the integrity and independence of the judiciary. (1) The grave offenses for which these charges were leveled were some of Judge Spargo's judicial campaign activities: (2) to-wit, with malice aforethought, to "induce votes on his behalf," he handed out coupons for free donuts and coffee, and five dollars in gasoline (to the first five comers) at a local convenience store. Moreover, introducing himself as a candidate for Town Justice, on other occasions he bought a round of drinks for everyone at a local bar, and "handed out 50 half-gallons of cider and donuts to town residents at the town dump." (3) Local schoolteachers, highway maintenance, school bus garage and town barn employees, and patrons of a local store were also recipients of his largesse, receiving free pizzas to encourage their votes. (4)

Given that these activities would likely raise barely an ethics eyebrow if a Donor of Donuts had been stumping for George W. Bush or John Kerry, we may ask why the instinctive reaction to Judge Spargo's antics is disgust and embarrassment, especially by lawyers. Is it that Judge Spargo laid bare the ugly possibility that votes can be "bought" for a $5 gas coupon or free cider and donuts? Is it that Judge Spargo asked for voters to punch his name on the ballot for the wrong reasons? Or, as the charges suggest, is it that Judge Spargo was not acting "judicially"--that he offended the community's sense that judges inhabit (or at least should appear to inhabit) a world above the ordinary rough-and-tumble of political life?

As Judge Spargo's case illustrates, popular debates about the merits of judicial elections versus judicial selection commissions have probably been mis-focused on two "second-order" questions rather than concentrating on "first-order" concerns in judicial selection. One of these "second-order" questions is whether merit selection defeats the "right" of the voters to select judges. (5) Second, both pundits and professors wax forth on the question of who is better at selecting judges--the general public, or lawyers and trained laypeople on merit commissions. (6)

These questions, however, somewhat miss the point. Although surely in a democracy, voters do retain the ultimate "right" to make choices about who will govern them, wise rights-holders do not always exercise their rights directly. While I surely have the right to fix my own plumbing and educate my own children at home (so long as I meet state regulations), it is not always the smartest idea for me to do these things myself. Rather, in exercising my own practical...