Trial Lawyers Lose Their Sacred Cow, Seek Greater Influence in Judicial Selection
Only after West Virginia's trial lawyers find themselves on the losing side of an election for a justice of the West Virginia Supreme Court of Appeals do they consider reforming our partisan election system. For years, they supported keeping competitive partisan elections for all judges in West Virginia because they said they "trusted the people" to elect the judges and staff the juries. Who in politics does not profess an eternal trust of the people? When We, the People, handed their patron-in-chief Warren McGraw his gold watch and early (or as most of us thought, long overdue) retirement last fall, they were stunned.
The trial lawyers long supported competitive partisan elections for judges because they believed they could get judges sensitive to political concerns whose interpretations of the law would be heavily influenced by a desire to protect their personal popularity. That's why most of us who did not share that judicial philosophy have wanted a change. We've still got too many circuit judges in this state who view their job as just another political post in which they must follow the will of the people rather than the rule of law. The will of the people must channel itself through the Legislature and the actions of the Legislature in writing the law. Popular or unpopular, judges have a duty to the Constitution to totally disregard public opinion and apply the law as it as written. That cannot be done when judges obtain office through competitive partisan elections in which, notwithstanding Don Blankenship's efforts in last year's state Supreme Court race, the bar is still the predominant financier of judicial races.
My reform plan is very simple. All judges would keep their current term of office of 12, 8, or 4 years, as applicable. The beginning of judges' terms of office would be moved from January 1 of the year following the statewide and presidential election to March 1. All judges would be nominated by the Governor and subject to confirmation by the state Senate. Justices of the Supreme Court of Appeals would hold office for 12 years as they do now, judges of the circuit courts and family courts for 8 years as they do now, and magistrates 4 years. A governor would not be bound by any requirement to renominate someone, nor prohibited from doing so, and would not be bound by any requirements other than to nominate someone who meets the constitutional eligibility requirements and who meets the approval of the state Senate.
The state constitution's 2 consecutive term limit for governors would ensure that the chances of a governor having the opportunity to consider renominating a jude other than a magistrate he nominated previously, are slim. Indeed, because of the cycle of judges' terms, had this system been in effect in the past, the only time a governor would have been able to appoint the same judgeships two consecutive terms would have been Arch Moore, for 2 justices of the state Supreme Court, for the 12-year terms that commenced in 1973 and 1985. No circuit or family court judges would have ever been subject to going before the same governor twice consecutively for nomination to the bench. To have the opportunity to nominate the circuit & family court judges or a majority of the state Supreme Court justices for two consecutive terms, a governor would have to be elected to four terms in a 20-year period, serving 2 terms, followed by the required term out of office, and 2 more terms.
I realize that the basic problem of changing judicial selection is deciding between the politics of the many and the politics of the few. While listening to Talkline, I heard one caller discuss New Jersey's judicial selection system, which involves nominations by the governor and confirmation by the state Senate, and its history of domination by political bosses. Unlike my proposal, New Jersey's system involves lifetime appointments like the federal system. I believe that placing the appointment of judges in the hands of the governor and state Senate, together with fixed terms of office rather than lifetime appointments, we will be more likely to get judges who respect the Constitution, the separation of powers, and the coequality and not the superiority of the judiciary over the executive & legislative branches of government.