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OpEdNews Op Eds    H4'ed 8/24/16

Resolved: Judges Should be Chosen by Citizen Juries

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Those interested in seeking judicial office could provide written applications to a jury, and then appear before the jurors to explain why they are a good choice for the office, and to answer any questions the jurors may have. Each jury could either choose one judge by majority vote, or could choose several judges, perhaps two or three, using a PR (proportional representation) method such as STV (single transferable vote).

If majority vote is used, there could be successive rounds of voting with the candidate getting the least votes in each round being eliminated until one candidate gets the majority of the vote. The remaining candidates could make further appearances before the jury between rounds of voting.

The procedures and arrangements for judicial selection juries need to be well designed to ensure an informed choice, and a fair democratic process. A commission chosen by jury could be tasked with working out the best possible design, but play only an advisory role, with all final decisions about the design being made by jury. In this way, the procedures and arrangements for judicial selection juries could be decided in a democratic and informed way, independently from politicians, political parties and special interests.

Judicial selection juries would put all qualified individuals interested in applying for a judicial office on a level playing field. As applicants would appear directly before the jury face to face and at length, there would be no need for costly television ads and campaign staff reaching out to the entire public, and therefore no wealth primary. Candidates with no special interest backers and no party affiliation, would be on an equal footing with those favored by big business interests, trade unions and political party establishments. The jurors would have an open democratic choice of all those wishing to apply, not a choice restricted by moneyed interests and political parties. Judges would be able to focus on their jobs, with no need to spend their days on election fundraising.

Random sampling would ensure that no portion of the public was underrepresented among the jurors. As hundreds of juries served over time, the total number of randomly sampled jurors would climb into the thousands. A random sample of thousands is an extremely accurate cross-section of the public.

Judicial selection juries would embody the equality of citizens because each citizen has the same chance of being randomly sampled as any other, and because younger citizens, ethnic minorities, and all other portions of the public, would be represented in proportion to their number.

Judicial selection juries put the selection of judges on the excellent and highly democratic basis of informed rule by the people, or of informed rule by a very representative cross-section of the people, independent from moneyed interests, billionaires, political parties and politicians, with no wealth primary, and with candidates being on a level playing field.

The people are the rulers, not politicians

The problem with choosing judges by popular election is not that it puts the choice in the hands of the people, but rather that it fails to do so, or does so very badly and inadequately. Fortunately, judicial selection juries provide a remarkably good and informed way for the people to choose judges.

In a democracy the people are the rulers, and are the highest and most legitimate authority, not politicians and political parties, nor the rich interests that fund their electoral victories. For this reason, the judiciary should be chosen by the people, not by politicians. All that is needed is a good informed way for the people to choose judges, something judicial selection juries can provide.

It would, of course, be absurdly undemocratic for the House of Representatives to be chosen by the President and confirmed by the Senate. It is just as undemocratic for the judiciary to be chosen that way. There is no reason why the people's right to rule should be any more denied in choosing the judiciary than in choosing the House.

The third branch of government, the judiciary, is supposed to be independent from and co-equal to the other two. In order to fully respect this idea, judges need to be chosen independently from the other two branches of government.

Women, as equal citizens and half the population, should have an equal say in choosing the judiciary, something they are very much denied when politicians choose judges. 44 of the 50 state governors are men, the president has, so far, always been a man, and 80% of senators are men.

Younger citizens, the 99%, and the 45% of Americans who are political independents, are also very much underrepresented among politicians. As equal citizens, as opposed to second class citizens, all portions of the public should have a say proportionate to their number in choosing the judiciary, including women, younger citizens, each percentile of the 99%, and so on. Judicial selection juries would provide this.

The U.S. political system is to a large extent an oligarchy dominated by economic elites, as indicated, for example, in the 2014 study by professors Martin Gilens and Benjamin Page. The choosing of judges by politicians needs to end in order to have a firewall between the judiciary and any capture of the other two branches of government by economic elites.

In his 2015 book The Case Against the Supreme Court, Erwin Chemerinsky shows that "the Supreme Court usually sides with big business and government power and fails to protect people's rights. Now, and throughout American history, the Court has been far more likely to rule in favor of corporations than workers or consumers; it has been far more likely to uphold government abuses of power than to stop them."(1.) Perhaps if SCOTUS had always been chosen by judicial selection juries representative of the people, it would not have been skewed in favor of big business and government.

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Simon Threlkeld writes about democracy and is a former lawyer, has an MA in philosophy (University of Toronto) and a law degree (Osgoode Hall Law School). He lives in Toronto, Canada.
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