When you vote — and vote we must today; can’t waste the right which cost the lives of so many — you may notice the section marked “nonpartisan.”
Unless you’ve encountered the courts, you probably won’t recognize the names. No big deal.
They’re not important enough to merit our ongoing attention, right? They’re only the people who can put you — or your grandkids who’ve made a mistake — in jail, who show compassion when they feel it’s merited, or throw the book at us when they don’t. They’re merely the folks who decide whether that business dispute should go your way or cost you a bundle.
Courts: Those rarely considered, yet so important domains of American justice.
Why is it that so many of us, despite knowing their function in society, pressure judges and judicial candidates for political opinions?
Yes, it’s human to have biases, whether or not admitted. No, it’s not impossible for a mindful person to put them aside when applying the law to evidence. That, along with significant legal experience, is what we want in a judge.
Local attorney Art Macomber recently posted on LinkedIn an apt assessment of the judicial candidate ideal. Answering a question about the proper role of political affiliation in choosing a judge, he wrote:
“A traditional political spectrum from left to right primarily addresses the legislative branch. Therefore, the judicial branch has little in common with that spectrum.
“The proper spectrum for evaluating judges (is) with law at one end and equity on the other. These things are rarely discussed, but the ‘law’ judicial function would reflect tradition by using textual analysis and by being more passive on the bench in terms of approach to rulings.
“(W)hereas the ‘equity’ judicial function would be more aligned with the conscience … what’s fair, and allowance for diverse circumstances in a particular case using a more activist, hands-on approach.”
As Macomber illustrated, that’s why for certain cases such as probate, family law, and title disputes, judges take the equity approach — focusing on fairness, all things considered. Criminal and business cases are generally considered using a more letter-of-the-law approach.
“There needs to be more education about this to prepare judges for judicial employment,” Macomber concluded.
Same goes for us voters.
Do judicial candidates have a reputation for applying their political viewpoints (we all have them) in courtrooms or the practice of law? That’s not common, but where present, it’s not a good sign.
Do they have a reputation for being as blind as Lady Justice, or at least close — applying the law consistently, treating both sides of a dispute and all types of defendants or plaintiffs equally? Are they known among litigators as tending neither to favor nor disfavor certain defendants, prosecutors, or any people in particular?
That’s the judge the Constitution has in mind.
Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.