Unmeritorious Decision

Prof. Shaun Martin writes of the Supreme Court affirming the death penalty for Richard Davis, who is Polly Klaas' murderer:

It doesn't take much to figure out what the California Supreme Court's going to do in this one once the resulting death sentence comes up on automatic review. This is an extremely high profile case. The possibility of being recalled -- or defeated for reelection -- is a distinct possibility if you vote to reverse. So I hope it comes as no surprise to anyone that the California Supreme Court unanimously affirms the conviction and death sentence.

Not to express any love for Davis, who deserves none, but this isn't deciding the case on its merits. Judicial action of all sorts, and criminal prosecutions in particular, should be decided on their merits and not subject to popular vote. Adjudication is not democracy. Unpopular people have rights, too, and our legal system should protect and vindicate everyone's rights, not just those of the well-regarded.

Guys like Davis are pretty nearly the worst sorts of criminals our society has to deal with and I have no real problem with the death penalty being on the table for stuff like this. When we as a society collectively decide to put a criminal to death, though, we need to be really sure we're wearing the white hats.

And there is some reason to doubt that here -- Prof. Martin correctly, and sarcastically, points out that in his case there may indeed be good cause to believe that the police did act improperly while gathering evidence, and there has to be some kind of a remedy for that. Ignoring a violation of the Constitution when we're putting someone to death strikes me as, at best, incautious. Doing so because of political pressure is downright dangerous, which is another reason why elected judges are a dubious idea. Judges need to have the insulation from the pressures of politics to make the kinds of decisions that may actually be called for in this case.

Which calls to mind how I think the bench should be staffed:

• Judges should be appointed by the Governor of their state, or by the President in the case of Federal judges, and after a background investigation to ensure their good moral character and intellectual qualifications to serve, be subject to review and confirmation at the election of one (or maybe both) houses of the applicable legislature.
• If the legislature fails to take action to exercise its power to advise and consent on judicial appointments within a specific and short period of time (30 days), the legislature's consent will be deemed to have been given to that appointment, and the judge will be sworn in and seated.
• The term of service resulting from the appointment should be for a single, lengthy term of service, say, eighteen or twenty years.
• During that time, the judge's compensation cannot be reduced, and from which the judge could only be removed through impeachment, conviction of a crime of moral turpitude, or loss of a license to practice law.
• Pensions should fully vest prior to completion of the term of service (maybe at three-quarters of the length of the term), with the judge able to resign prior to completion consistent with the canons of judicial ethics but otherwise at will.
• Upon completion of the term, the judge should not be eligible for re-appointment to the bench at the same level for another five years -- but both during the term and in the five-year "hammock" period, the judge would be eligible for appointment to a court at a different level (i.e., trial judge to appellate judge) and to serve a complete term at that level as well, with pensions not to cumulate.

The idea here is to insulate judges from the direct ebb and flow of the political process, and in particular to keep their job security out of the hands of the fickle public as a whole so that the judges have the ability to render a legally meritorious decision without fear of public backlash. Executives and legislatures must have input into who serves on the bench, and they will serve as the peoples' representatives in the process of staffing the courts, and that check needs to be exercised ab initio, not post facto.

The limited, non-renewable terms are there to keep turnover high so that if a judge does fall out of step with the profession, they cannot do too much harm during that time. Don't cry for a judge who is "forced" to retire with a full pension after eighteen years of service -- that pension will be supplemented by very healthy fees from lawyers hiring that retired judge to perform ADR for them.

I think this makes a whole lot more sense than either the lifetime appointments system of the Federal Courts or the elected judges who sit in most states for short or medium-length terms.