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September 09, 2010

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Darren McKinney

The folks now arguing that the choosing of judges is just too complicated for lay voters and should instead be done by politically connected but ultimately unaccountable legal elites are, more or less, the same folks who've argued for years that highly complicated lawsuits alleging malpractice during brain surgery or responsibility for global climate change, for example, must ONLY be decided by lay jurors -- as opposed to expert arbitration panels or specialized judges.

Journalists should let Mr. Soros and his regulation-through-litigation plaintiffs' bar pals know that they can't have it both ways. If lay folks are smart enough to decide multibillion-dollar lawsuits, they're certainly smart enough to elect state judges.

Darren McKinney
American Tort Reform Association

Gary L. Field

The issue is not so simple as choosing between either having judges elected or having them appointed via a merit selection process. In Michigan, frequently judges ascend to office through neither a true election nor a true merit selection process.

Frequently, in Michigan, judges do not complete their terms. When a term is not completed, the governor appoints the replacement.

Many times, if a judge is not going to run for re-election, and if the governor has the judge's same political persuasion, the judge will resign before his term expires so that the governor can appoint a like-minded replacement.

When the appointed judge runs for re-election, his or her name appears on the ballot with a designation indicating that he or she is the incumbent judge. Because it is very hard for the electorate to be knowledgeable about judicial candidates, this judicial designation is very powerful. In Michigan, since 1970, only two incumbent appellate judges have not been re-elected.

So, in Michigan, many judges are political appointees, who are protected at the ballot box from almost all risk of defeat by the judicial designation indicating they are the incumbent.

Judge Taylor was appointed to the Michigan Court of Appeal and then to the Supreme Court by Michigan's Governor. At the time, Judge Taylor's wife was the Governor's chief legal adviser. While Judge Taylor proved himself to the Michigan Bar and became a highly respected jurist, the question remains whether it would be better to have a committee decide appointments to the bench or to have a governor make a political appointment.

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