Mrs. Warren's Profession, or Judge Wopner's?

NEW YORK, New York -- Voting. For. A. Judge. I can't write that crap as a sentence because those words shouldn't go together.

Growing up, I was aware of "outlier" counties (and I do mean to say "county"; this, along with sheriff elections, seems to be one of the two or three actions done on a county level) that voted for judges. These places were generally miles from the supercool inner ring of suburbs I lived in, and I never thought any significant number of places voted for judges.

It turns out I was wrong.


The Supreme Court is about to hear the case of Caperton v Massey (Economist write-up here). It involves a judge from West Virginia -- the definition of "outlier county" -- named Brent Benjamin (above), who received $3M from an energy company's CEO directly and indirectly. Judge Benjamin received that money for his re-election campaign, naturally. When the energy company (Massey) appealed a $50M judgment against it, you can guess who cast the deciding vote in its favor.

The highest court in the land will be deciding on the legality of what happened, and there may be a ruling regarding campaign financing for judges (that sounds absurd just to say) or, for all anyone knows, even the constitutionality of electing judges -- though that's doubtful.

The thing is, as Slate's Amanda Frost notes, in many states judges can actually write law where it doesn't exist -- so there's reason to let people elect them. Of course, as the NYT reported last spring, the United States remains, stubbornly, about the only place in the world that elects any judges, so there are certainly ways of setting up a system that precludes their election.

What's crucial, though, if judicial elections can't simply be expunged and legislative powers taken from the judges of Miscaloosa County or Beaver Briar County or whatever, is that there be some way to make sure judges don't abuse their power. That's especially pertinent in the last month, which has shown that judges see their bench as a freaking candy shop.

As reported last week by the excellent-but-compromised Dalia Lithwick, judiciary reporter for Slate and Newsweek and alleged to have been a college debater (hence the compromised bit), recent weeks have seen sex allegations, obstruction of justice charges, violation of duty and bribery among the supposedly stoic members of the Third Branch. (If you haven't eaten any enchiladas or other stomach-rumbling foods recently, you can try reading this, the most sickening case of judicial criminality this year.)

One of the biggest problems -- and one that even Supreme Court Chief Justice John Roberts has sketchily made hash of -- is judicial impartiality and the fact that it falls on judges to recuse themselves from cases that prevent a conflict of interest. Which they often don't do -- and given the sex charges, bribery, etc., that may no longer surprise anyone.

So what's to be done if judicial elections are here to stay, other than to "flay" them as was apparently done to bribe-taking judges in ancient Persia? In places where there are elections, Frost suggests mandating public campaign financing. That may cost voters a buck or two, and inflame the likes of Grover Norquist, but it's a good investment for impartial courts, whether or not West Virginiatuckians like it. And for the Supreme Court and other unelected judges, there should be boards of judges to rule on recusals in conflict-of-interest cases. Even if that would make the likes of Caperton wait longer to have their day in court, at least they'll know that the defendant hasn't squirreled $3M into the judge's campaign fund.