Judges (again)

The Pitchfork Rebellion is, according to this Washington Post article, a nonpartisan group critical of the judicial selection process in Virginia. Truth be told, it’s hard not to be critical.

Virginia is one of only two states, along with South Carolina, that empower their state legislatures to pick state judges, a process primarily conducted behind closed doors.

Why is it that Virginia Virginia is often in the minority when it comes to the way things are done? Just take a look at how we restore voting rights to felons or how we limit our governor to a single term, for example. Virginia seems to be out of step with the rest of the nation.

The judicial selection process needs to be overhauled.  I am no advocate of elected judges but something needs to be done.  Right now, we just have to believe that the judges chosen by the General Assembly are not only the best and brightest but also have the ability to act contrary to self-interest. After all, many members of the General Assembly are lawyers who practice before the very judges they select. Who, besides those involved, really knows what goes on behind those closed doors?

Some may argue that all we need is a more open process. I disagree. Those committed to the wheeling and dealing of backrooom politics will always find a way to circumvent the sunshine. The only real answer is to take the process out the hands of those people. Let an independent panel choose the judges. And let the selection of that panel be such that it is above reproach.

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17 thoughts on “Judges (again)

  1. As it is, the Bar Association(s) of the city or county where the choice is to be made vote on the prospective judges for a non-binding recomendation. In my experience those are just popularity contests between those few attorneys who bother to show up to vote. I’m amazed that we have as many good judges as we do. I’d be interested in knowing how to implement your plan: who chooses the “independent panel”? How does the panel choose the judges. Often whether a judge is “good” or not depends upon whose ox is gored.

  2. Here is a proposal a friend of mine came up with:

    1) After ten years as a lawyer with a solid, winning record, one is put into the “judge pool.”

    2) Cases are assigned to judges randomly (no judge-shopping).

    3) Judges are paid their normal hourly rate while on the bench.

    4) After ten years and a solid record of not being overturned, one is put into the appellate judge pool. Appellate panels are still assigned randomly.

    5) After yet another ten years and a solid record, one may be appointed (randomly) to the Virginia Supreme Court for an 11-year term. In one’s 11th year, he is the Chief Justice.

    6) After 11 years, one goes back to the Appellate Pool, but can never again sit on the Supreme Court.

  3. Very good outside the box thinking by your friend, Anon!

    As a lawyer myself, here is the only minor criticism of the plan: the requirement of “a solid winning record” would discourage lawyers from taking tough cases which are meritorious but not sure winners.

    Also, the randomness–while it takes out the partisanshp–fails to distinguish the better judges. Good and bad judges can keep from getting overturned and still be objectively “bad” judges. Maybe to tweak the plan, allow the judges to be rated by the parties and their lawyers, especially the losing side. If the losing side acknowledges that the judge was fair, that should be a positive. [Good points by your friend though, I like it!]

  4. A perfect record is not required, only a winning record. Lawyers that continually take frivolous lawsuits on the off-chance that they can win for big bucks will be out.

    (I also recommend ending the practice of awarding lawyers a percentage of the winnings.)

    1. “(I also recommend ending the practice of awarding lawyers a percentage of the winnings.)”

      I sort of like that, but I worry about plaintiffs who can’t afford attorneys- a lot of them will get lawyers on a contingency basis, because there’s no other way they can actually get the attorney to take their case- they just can’t pay. It might be better to limit when the lawyer takes the contingency- the plaintiff has to pay off a certain percentage of bills associated with the case outstanding at the execution of the judgment, and then the lawyer takes a percentage off of that remainder, maybe?

  5. Genevieve,

    Let the percentage be the MAXIMUM the lawyers can receive. They work by the hour. If they win, they get that hourly rate up to that percentage.

  6. Fine, Anon, but let the defense attorneys only get paid if they win, too. And cap their fees at a per centage when they win. What’s good for the goose is good for the gander. Or aren’t there ever any frivolous defenses raised?

  7. That should be between the defense attorney has his client. The problem with the plaintiffs’ attorneys’ getting percentages is that there is an incentive to file many frivolous lawsuits on the off-chance that one will pay off. Since defense attorneys are not getting a percentage of anything, their reputation (won-loss record) is their incentive not to take indefensible positions.

    1. There IS NO incentive to file a “frivolous lawsuit.” If it is frivolous, and you are getting paid a percentage, you will get paid nothing if it is frivolous. The incentive is to take cases that are meritorious, so that you will get paid.

      If the defendant pays money, it is because they are afraid they might lose, and thus it isn’t “frivolous.” And if the judge/jury awards the plaintiff money, it ain’t “frivolous.” I’m starting to sense a total lack on your part of knowing what the heck you are talking about. Please, sir, it must be my poor grasp of logic that is at fault. Enlighten me.

      1. Different context, but what about derivative corporate law suits in regards to breaches of fiduciary duty or breaches of the duty of loyalty? They aren’t really frivolous, but isn’t it that in a derivative suit, the plaintiffs don’t get the money because they are filing on behalf of the corporation? So the lawyers get fees, the corporation gets money, but the members of the class don’t really get anything? Still, the incentive is for the contingency-fee lawyer to only file a meritorious claim, because she’ll only get paid if she wins.

        And even then, the incentive, what with the basic erasure of any chance of winning those suits under Caremark or the DGCL § 102(b)(7), combined with demand requirements and special litigation committees, the incentive, I think, is to avoid derivative suits.

        And also, with 10b-5 suits, sometimes unscrupulous lawyers will file a suit that’s not exactly frivolous, but that has the potential to be long, difficult and embarrassing for the corporation, even if the corporation has an OK chance of winning, in hopes of getting a hefty settlement from the corporation, which they’ll take a whack out of on their contingency basis. That’s being reduced through all the ways you can just move to dismiss 10b-5 claims though- the courts consistently make it very hard on plaintiffs, in part to get rid of this issue.

        My point being, there are instances where there is an incentive to file a, well, not frivolous always (courts always call it frivolous in my experience), but annoying suit in the hopes for a quick settlement, but other mechanisms counter that incentive.

      2. Many lawyers file frivolous lawsuits with the intent of settling out of court, which the plaintiff agrees to to avoid the hassle and expense of going to trial. Also, many juries are known for awarding large awards against large corporations despite clear evidence that those corporations were not in the wrong, merely because something bad happened and the company has deep pockets.

  8. Why is it that Virginia Virginia is often in the minority when it comes to the way things are done? Just take a look at how we restore voting rights to felons or how we limit our governor to a single term, for example. Virginia seems to be out of step with the rest of the nation.

    Don’t forget that Virginia is (as far as I know) the only state with “independent cities.” That bothers me more than how we select judges.

    The legislature is elected by the citizens – why shouldn’t it play a significant role in the selection of judges? Greater openness and term limits do seem like good ideas, however.

  9. Candidates are not voted on by whoever shows up to vote at Bar Association meetings. There are judicial candidate review panels that review applications, interview the candidates and submit recommendations.That is when the legislature requests it. Sometimes legislators select people without using this process. The panels generally rely on qualifications, unlike the legislators.
    There are merit selection programs in place in a number of states. The American Judicature Society which is devoted to an independent judiciary provides information to legislatures that are interested. Ours is not.

  10. Independent panel — nope, sorry. You just finished noting (correctly) that influence (back rooms, etc.) will be wielded no matter what. No such thing exists as the independent panel that is beyond reproach.

    The best system – and it will always be imperfect, no matter what it is – will proceed on principles of pitting powerful interests against each other, as James Madison would have said. A system of pure popular elections would give you what they have in W.Va., which went to the Supreme Court this week — coal companies buying seats on the court, etc. Life tenure is one way to try to insulate judges from being influenced – but it’s hard to correct mistakes in that setting. I am not entirely sure that Virginia’s system is all that bad – and I tend to think it is better than having judges run for office just like they’re running for Council or Mayor.

  11. Absolutely no reason, to keep this process in a small committee in the General Assembly. Every reason to make it an elected position, where judges have to run on their record. This way we can see who is letting drunk drivers lose on the streets to kill the rest of us. VOTE ON THEM and get this out of the back rooms and committee’s.

    One of the reasons we appear to be behind the curve is the Dillion Rule. Which, if you read up on the history of the Dillion Rule and why it came into our process, you have a better understanding of how corrupt the entire process truly is. Amazing we have any progress whatsoever, given the lack of integrity amongst the legislature!

    Here is a brief description of what the Dillon rule is by the Fairfax County Government.
    http://www.fairfaxcounty.gov/dmb/fcpos/dillon.pdf

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