The best part about being a judge on the Circuit Court in Jefferson County (not counting having a reserved parking spot in the basement of the courthouse) is being a judge on the Circuit Court in Jefferson County. The worst part is almost everything associated with getting and keeping the job (i.e., elections). They say that in a democracy people get the elected officials they deserve. Maybe so, but if so, given the convoluted, impersonal, and indiscriminate means through which we choose our Circuit Court judges, we the 1,000,000 people of Jefferson County have historically gotten much better than we deserve.
It used to be whenever I would hear a judge talking about the horrors or their campaign trail of tears, I figured it was the judicial version of a third-year law student talking about their Bataan death march through law school. Having been to law school myself, I assumed that these tragic law school survivors were talking to impress people who didn’t know better. I likewise assumed that judicial election victims were bemoaning their lot for similar effect. As a veteran judicial campaigner, somewhat worse for the wear, I now know better. It is truly awful. I’m not suggesting that time spent running for Circuit Court is worse than time spent doing time in the state penitentiary in Eddyville. I’m saying it would depend on exactly how much time we’re talking about and the congenial disposition of your cellmate. As such, we have been very fortunate to have regularly attracted a critical mass of qualified candidates willing to run the Circuit Court election gauntlet. We have been even more fortunate that so many of those willing and able candidates also happened to have been electable.
If you were to take the number of people in a position to have formed an informed opinion about who to vote for in a Circuit Court judge’s race, multiply that number by the number of people they share their opinion with prior to the election, and then double it, you still wouldn’t have enough informed voters to fill up the shallow end of the 475,000 person voter pool in Jefferson County. Even if it were possible to go to every fair, festival, fiesta, picnic, parade, and political hootenanny in the county from the filing deadline up until the polls closed on Election Day, a would-be Circuit Court judge could never personally shake enough hands or kiss enough babies to win the election. The vast vast majority of the people voting for or against a judicial candidate have no idea who that person is or what a judge actually does. You could fit everything the average voter knows about a Circuit Court election into a thimble and still have room left over for how much they care. That means that after eleven months of hitting up their family, friends, and strangers at large for money and trying anything and everything they can think of to get anyone and everyone they meet to remember their name on Election Day, the election is ultimately decided by people who made their choice for some reason other than “this is the person I have decided is the most capable of doing this very important job”.
The vagaries of judicial elections are such that the difference between winning and losing a Circuit Court race can come down the candidate’s first name (female candidates have a 25-30% advantage over male candidates); last name (almost half of the people elected to the Jefferson Circuit Court since the institution of non-partisan elections share their last name with another elected official), or even the order his or her name appears on the ballot (the first person listed on the ballot has up to an 8% advantage over the field). While judicial elections are “non-partisan”, they are by no means apolitical. The political machinations necessary to secure the endorsements that translate into the most votes are Byzantine in conception and Machiavellian in execution. In the interest of full-disclosure, I freely acknowledge that most of the people who voted for me likely did so because they saw me in a well-placed TV spot and thought I seemed like pretty good guy. I am a pretty good guy, but if I wasn’t, I guarantee you that I could fake being one long enough to film a fifteen or maybe even thirty second commercial.
Why am I telling you this? Because if we are to continue to elect Circuit Court judges (which despite everything that I’ve written up to this point I strongly believe we should) then the community in general and the legal community in particular must take a greater interest in and shoulder a greater part of the responsibility for the outcome. My concern is that if the legal community does not, then one or more self-interested, well-funded politically motivated someone else’s will. It’s already happening across the country (e.g., Ohio, West Virginia, Iowa, Minnesota, and Texas) where special interests have taken advantage of the lack of interest in these races to influence the outcome in the not-so-forlorn hope of gaining favor. Lawyers are appropriately and uniquely situated to make sure that does not happen here. The alternative is to do nothing and simply hope that our luck doesn’t run out.
Among the recurring themes in these View From The Bench essays is the importance of an independent judiciary. The founding fathers were justifiably afraid that this revolutionary new form of democracy would fail. They saw, and I promise I’m not making this up, a country filled with people who they believed were, by and large, pretty stupid and, as such, could be easily mislead by unscrupulous politicians who, once in office, would devote themselves to staying in power by eliminating their political competition. The result: home-grown self-imposed tyranny. Like that could ever happen. Anyway, just to be on the safe side, they created a third branch of government whose job it was to protect minority rights from the potential majority rule inspired political despotism- the independent judiciary. An independent judiciary is integral to democracy but is only as good as it is independent - and it will remain independent so long as people (both those being elected and those doing the electing) remain committed to it being so.
In part one of this epistle, I wrote an entertaining sermon about the voodoo science underlying the non-partisan election of judges to the Circuit Court here in Jefferson County. As a noted amateur expert in the field, I offered my unbiased opinion that while in the modern history of the Circuit Court we have been very fortunate to have had so many qualified candidates elected to the bench, the growing decline in interest in judicial races could certainly bring about ill fortune in the near future. Those of you who share my concern may nevertheless be clearly confused about what can be done to keep this common phenomenon from spreading. Thinking out loud to myself I came up with what I believe are three terribly good suggestions.
NUMBER ONE: Don’t do nothing. Judicial candidates spend the long hours leading up to election day trying to motivate passionately indifferent voters. It can be a lonely road filled with sharp curves. Every candidate needs a small army of supporters to travel that road with them. You don’t need to make judicial elections your full-time hobby or sign on as a paid volunteer for every Tom, Dick and Harry Blackmun who aspires to the bench, but you can do something. Slap a bumper sticker on the window of your car. Plant a yard sign in your driveway. Sport a long-sleeved tee shirt with your candidate’s name on it. It may not make the difference in who wins the election - but it might. In any event, it’s a safe bet that it will make a huge difference to the hard-working person you’re working hard to get elected.
NUMBER B: Provide a tangible $ign of your affection. Free elections are expensive. Even a spend thrift will run through a small fortune over the course of a Circuit Court race. In a country where money is speech - money talks. Because a campaign with a lack of funds is going nowhere, outside income is necessary to get your voice heard by the voting public. Raising those funds is no easy task and every judicial candidate’s least favorite thing to do. This is so even though the voluntary regulations governing judicial races preclude the candidate from directly soliciting contributions. You can lighten his or her load by lightening your wallet.
NUMBER THREE: Phone a friend. The simple math is that there are about 475,000 eligible voters in Jefferson County. Exact estimates are that approximately half of those eligible voters will vote in each Circuit Court race. The winning candidate is the person who can secure the bigger half of those votes. Given that the vast majority of this group of individuals are absolutely unsure who to vote for, the real magic is in significantly increasing the enormously small cadre of informed voters. Lawyers stand alone in the crowd because they are familiar with what a judge does and have at least a preliminary conclusion as to which candidates are well-suited to the job. This common difference makes lawyers uniquely qualified to tell people who don’t know, but who want to know, who to vote for. Every lawyer has the ability to share that untold story with others. As such, they have the opportunity/obligation to phone, text, tweet, snapchat, instant message or use whatever means of personalized mass communication available to them to share what they think they know.
To make a long story short, while there is no foolproof plan to make the Circuit Court election process more perfect, there are lots of things members of the bar should be doing on the front end to even the odds that the most able candidates are also the most electable. If we in the legal community continue to turn a blind eye towards the quiet storm that is brewing, then we will have no one to blame but ourselves if it all goes exactly wrong. We will be the oxymorons who let this minor crisis happen.
If you include “aspire to the bench,” then there are sixty-two (62) oxymorons hiding in plain sight in essay. Knowing how little people enjoy being lectured, I wrote this essay this way in the hope that reader would realize that there is something they can/should be doing and that they might be thinking about the problem while they are looking for the solution. Please feel free to e-mail your educated guesses to me and I will send you the Answer Key. Good luck.