Commentary: Voting for judges
It happened again this year. At first, I was embarrassed, but now I just laugh. “Who should I vote for?” friends ask. At first, as a lawyer and a law professor, I felt like I should know the answer to that. But I didn’t — and still don’t. In Massachusetts, where I come from, judges are appointed for life. In California, some judges are appointed by the governor, but then they stand for retention after their first term. And there are other seats on the Superior Court, the local trial court, where you don’t get appointed; you just run. “You” meaning former prosecutors.
Superior Court judges don’t just preside over criminal cases. But as I perused my absentee ballot looking for at least a few names I might know and support, I almost started laughing about the many varieties of prosecutors on the ballot — and not just any kind of prosecutor. “Gang prosecutor” sound tough enough? How about gang “predators”? Not just sexual assault prosecutors, but sexual “predator” prosecutors. Prosecutors with 98 percent conviction rates.
Geniuses? Brilliant judges to be?
I think I have a pretty good idea of what it takes to be a good judge, having appeared in front of some great judges and some who were not so great.
Certainly, it helps to know your way around the courtroom, how to make easy calls as to what is admissible and what isn’t, and in that, prosecutors, who probably spend more time in court than any other kind of lawyer, are obviously very knowledgeable.
But being a judge, or at least a good judge, also requires other skills. You need to be able to understand almost any area of law, to be able to try a criminal case and also a fraud case, to supervise discovery in a complex business transaction gone wrong, to corral lawyers whose instinct is to fight over everything in endless submissions. You need to be smart and organized.
As I look at the list of former prosecutors of every stripe asking for my vote, how am I to know who is smart and organized, who will be able — with tight budgets, meaning very little help from clerks and support staff — to move the process forward fairly and smoothly even if some or all of the lawyers have no desire to do so? The short answer: I haven’t a clue.
And being smart and organized isn’t even the most important piece. At the end of the day, at least if you ask me after three decades in this business, the most important quality in a judge is — big surprise — judgment. Dare I call it wisdom? Dare I call it, as it sometimes is, courage?
Every case has winners and losers. Most of the time, cases turn out roughly as they should, roughly as you might predict. But not always. Definitely not always. I’m not (just) talking about innocent people getting convicted (which happens, but rarely). I’m talking about civil cases where truth and justice don’t triumph — maybe because one side had a bad lawyer, or because the other side did a better job of picking a “favorable” jury, or because the hometown team killed the outsiders. I have been involved in cases that made me feel proud of our justice system and cases where the best I could do was to apologize, and not for my mistakes, but for the fact that the rule of law, as administered by men and women, is far from perfect.
What makes the difference, particularly when things go very wrong, is having a judge with the wisdom and courage to right those wrongs. I have seen that, as well, from judges who agree with me on nothing when it comes to partisan politics, but are people of wisdom and courage.
I don’t know how you find such people on a ballot. And if I don’t know, I don’t think my non-lawyer neighbors are likely to fare much better. It is a terrible way to pick judges.
Susan Estrich’s email address is firstname.lastname@example.org.