Robert Gehrke: Utah shouldn’t elect its judges. Here’s why.

Robert Gehrke

Maybe it’s happened to you: You’re voting, bopping through the ballot, pretty sure you’ve got all the answers right and then you get near the end and realize you forgot to do your homework for part of the quiz — the judges.

You’re really only left with a few options. If you haven’t been a defendant in the judge’s courtroom, you can assume they’re fine and let them keep their jobs; or you can vote all of the bums out.

Nearly all of Utah’s judges survive by wide margins. That bugs Sen. Dan McCay, who is proposing to get rid of appointed judgeships and make candidates run for office in nonpartisan elections.

“Do you realize how many emails, text messages, direct messages on Twitter, people in the legal profession who say, ‘Please don’t mention my name, but this is long overdue,’” he said. “The question is: Is our retention process providing accountability? Is it robust enough? I’m not saying electing judges is the answer. I wanted to start the conversation.”

He’s not entirely wrong. You can count the judges who have lost retention elections on one hand, even if you had a nasty band saw accident.

Judge David Young was voted out in 2002 after twice being reprimanded by the Supreme Court and criticized for being biased toward women and gays and too lenient on sex offenders and drunk drivers. Judge Leslie Lewis was defeated in 2006 amid bad publicity for knocking 10 years off the sentence of a sex offender and threatening to lock up reporters.

That’s it.

But McCay’s proposed constitutional amendment comes with a slew of new problems.

Currently applicants for judicial vacancies are vetted by a nominating commission, the governor chooses from that list of qualified finalists, the Senate vets the eventual nominee and votes to confirm, and then that judge has a retention election every six years.

It’s a complex, but thorough process and has generally produced highly qualified judges. Back in 2014, retired U.S. Supreme Court Justice Sandra Day O’Connor and the University of Denver put together what they viewed as the model system for seating judges and it was exactly the system that Utah (along with Alaska and Colorado) had been using.

It really is the gold standard for choosing judges, and looks even better compared to elections.

There are 38 states that hold either partisan or nonpartisan elections for at least some of their judges. The rationale during the days of graft and corruption was that elections were better than leaving appointments in the hands of party bosses, which makes some sense. Utah used to be among those states, originally electing judges in partisan elections, then nonpartisan elections, before ending up with the appointment system we have today.

McCay, in a tweet last week, made the case that electing judges means courts would reflect “the voice of the people.” But that’s really the Legislature’s job, to reflect the public will when it crafts the law. The courts are there to interpret and apply the law, insulated — as much as possible — from the political, monetary and electoral pressures that drive the legislative process.

And there are no shortage of examples, documented in newspapers and law review articles, all the way to “Last Week Tonight with John Oliver” (which you really should watch) where elections infuse the courts with all of the toxic influences we should want to avoid.

“There are all sorts of reasons” to not have judicial elections, former Utah Supreme Court Justice Christine Durham told me, “the most serious one has to do with the amount of private and special interest money.”

The Brennan Center for Justice reported in December that special interests donated 27 cents of every dollar spent on state supreme court elections, much of it unreported dark money. Last April, special interests spent $4.3 million on a Wisconsin Supreme Court election.

In 2016, The Center for Individual Freedom spent more than $750,000 on attack ads against a Mississippi Supreme Court justice, accusing him of “siding with child predators.” The judge had ordered a new trial for a defendant who had been sentenced to death because his attorney had failed to prepare for the case.

In Illinois, lawyers spent millions to unseat a judge hearing an appeal on a multi-billion-dollar verdict against their client.

How can judges be impartial when they know making an unpopular — but legally correct — ruling, or siding against a powerful interest could end their career?

To brace for any attack, judges need lots of money of their own, which means asking for contributions and often those come from the same lawyers who will show up in court.

What’s more, research has found that judges facing an election are more likely to impose tougher sentences than those who are not. In 37 states that have heard capital cases in the past 15 years, appointed judges were about two-and-a-half times as likely to reverse a death sentence than judges facing competitive elections.

“People have more trust and confidence in a judiciary they believe is independent,” Durham told me, whether those pressures are political or monetary or electoral.

Durham also notes that McCay’s entire premise — that judges have no real accountability — is flawed. Before each retention election the Judicial Performance Evaluation Commission rates every judge who will be on the ballot and recommends retention or removal.

Almost always, they come down on the side of retention, but Durham said the public doesn’t see the number of judges who decide to retire rather than go on the ballot with a negative recommendation. Only once in eight years has a judge chosen to run despite a bad review from JPEC.

With the vast majority of Utahns voting by mail, there’s no reason to be caught not having done our homework.

The courts aren’t perfect, judges aren’t perfect and the system for choosing judges probably isn’t perfect either. But it works a lot better than McCay’s amendment, which is a poor solution that could taint our entire justice system in a bid to solve a problem that doesn’t really exist.