I have been warning you for years about the effort to dilute your power when it comes to electing judges in Kentucky. (here, here, here, here, here and here) I fought for and won a Free Speech case to protect the First Amendment rights of judicial candidates and voters. My efforts were followed by new rules for judicial elections in Kentucky. But those victories did not end the opposition.
Several prominent members of the bar continue to press for a change in our system which will result in the appointment of judges instead of the election of judges.
One of the arguments advanced in support of eliminating elections is the supposed worry that the public might wake up and require more information about judicial candidates, demanding to know what they believe, how they think and what kind of political views they hold with regard to the constitution.
Those who advocate for the appointment of judges are cagey enough to suggest that they are motivated by altruistic principles. They say with a straight face that people don't want judges who have any personal opinions. How dumb do they think you are? Like it or not, of course judicial candidates have personal opinions just like everybody else and everybody who thinks about it knows it. But those who oppose elections want voters to act like characters in the movie "Idiocracy" and just agree with what they are told without thinking.
Judges are people just like you. They have opinions, biases, beliefs, and views on all kinds of things according to their their upbringing and life experiences. These things are undeniable so maybe the real questions should be: will such things as we are able to learn about a candidate influence his/her decisions and if so, how?
Before becoming a judge candidates are human beings. But once they become judges they are sworn to a higher duty, the duty to decide cases based upon the rules of judicial decision making and not their personal biases.
But why should that higher duty mean that you should be deprived of information about them? Should the question whether a particular candidate is a conservative or a liberal be forever off limits? For example, when it comes to the Constitution wouldn't you like to know if the candidate is reliably a strict originalist like Antonin Scalia, or a "living document" sort of person more like some liberal justices seem to be?
If you knew the background of all candidates might your inquiry be more properly focused on which candidate seems to have the greater capacity to decide cases fairly according to how they see their role within the proper dictates of judicial decision making?
Use the example of our military personnel. Some members of the military may stand very much opposed to the politics of the Commander In Chief, they might even carry a variety of biases from their personal lives onto the battlefield. Don't we want Marines to execute their duties without letting personal attitudes interfere?
In some ways lawyers are called upon to do their duty even if they do not necessarily always agree with their client's actions. For example when asked recently how I could ever represent a criminal defendant I made it perfectly clear: I took an oath and my duty is to I represent their rights, not their wrongs.
Time and time again the members of the bench and bar have openly expressed their own bias that voters cannot be trusted to make informed decisions. They try to impose their will on the rest of us by the relentless effort to take away your right to elect judges and instead put the entire process behind closed doors. And here is how that works.
Soon Kentucky Governor Steve Beshear is going to appoint a Supreme Court Justice to replace retired Justice Wil Schroder. There is a committee which will meet, consider applicants and send a list to the Governor to assist him in making his choice. I have been encouraged to apply but I have also heard in a number of conversations, that the "preferred" choice of the democrats has likely been made and the people who will be advising the Governor are of course democrats. In case you hadn't noticed, I am not.
Does this mean that the Governor will not make a wise choice? Of course not, but it does very clearly illustrate that the choice will be influenced by politics. To what extent? I guess we will have to wait and see.
Today it was reported that the Kentucky House Budget Committee just passed a bill providing for public financing of Supreme Court races. Does the timing of this strike you?
After I, as a republican candidate for Supreme Court, stood up for the Constitution (with the strength of a US Supreme Court decision behind me) and Kentucky was required to recognize the first amendment right of judicial candidates to raise money, now just in time for the next set of Supreme Court elections the Democrats in control of the House passed a bill out of committee providing for public financing of Supreme Court races.
Do you think the Democrats might be worried that the GOP, the TEA party or conservative voters in some republican leaning districts might get behind a conservative candidate and negatively impact the chances of another democrat to win the office? Might there be bills now or in the future which might make their way to the Supreme Court for decision? Do you trust House Democrats to not play politics?
You might want to think about this.
Remember, it was a state court judge in Indiana that just jailed a man for openly criticizing another judge. Nothing less than the fate of the Constitution is at stake there. Such things will surely happen here too.
And just in case you forgot, we were warned 60 years ago that progressives were going to take over teaching kids in our schools and universities and we didn't do enough, even with that warning, until it was too late.
Be alert, and be informed. Judicial elections can have great and long lasting consequences.
And hold on dearly to your right to elect judges. It has always been my belief that informed voters make better choices.
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