Should Alabama's appellate court judges be appointed?
Democrat Deborah Bell Paseur, a candidate for Alabama Supreme Court, thinks they should be. So do I. However, the key question for me is not whether they should be appointed, but how.
One of the downsides to electing judges is that it tends to make the judiciary too dependent on the prevailing winds of the political climate. That said, I am convinced that certain methods of appointing judges would lead to a judiciary that is even less independent and more politicized than it is today.
For instance, lets take the Alabama Bar Association's proposal for appointing judges under a system of "merit selection." Under the ABA plan, the Governor would select judicial appointees from among three nominees submitted by a nine-member nominating commission, four of whom would be lawyers appointed by none other than the Alabama Bar Association. How that could be any less "political" than the current process of popular election is a mystery, since lawyers - and particularly those who are likely to win favor within the Bar Association - are among the most political animals in the universe.
An even bigger problem with this proposal is that it would essentially make the Alabama Bar Association a part of Alabama government. That's simply unacceptable. I don't care who it is - whether the Bar Association, the ACLU, the NRA, the National Right to Life Committee, or anyone else - whether they're conservative, liberal, Republican, or Democrat - no special interest group should be afforded a constitutionally-guaranteed right to wield the powers of government. Period. To grant such privileged status would be an open invitation to corruption and would defy the principles of republican government. That the Alabama Bar Association would even propose such a measure is a testament to its regard for those principles.
Now, back to the main question. If we are to appoint our judges, how should we go about it? Instead of looking to the so-called "Missouri Plan" as a guide, as the Alabama Bar Association has done, I prefer to use the U.S. Constitution: direct appointment by the Governor and confirmation by one or the other branch of the state legislature. If retention elections would help to make that system more palatable, I see no problem with that, provided that judges' terms in office were long enough to grant them independence from the whims and fads of both the populace and the legal community. Eight or ten year terms sound about right to me.
Just about everyone wants to have judges that are fair and impartial, but it's hopelessly naive to expect that we can ever completely separate politics from judicial decision-making. If we approach this issue from that point of view, we might be able to come up with something better than we have now. But let's not trade something that is not altogether good for something much worse.