In the best of all possible worlds, the 6th U.S. Circuit Court of Appeals would not have issued a ruling on Kentucky judicial campaigns last week. In the best of all possible worlds, Kentucky judges wouldn't seek election. They would be appointed by governors from a list of candidates nominated by an independent panel — a panel that is not so dominated by political appointees that it politicizes the process.
At certain intervals after taking the bench, these judges would be subject to a vote of confidence by the constituents of their respective districts. Judges who survive the vote of confidence would remain on the bench. Those who don't would leave, and the nomination and appointment process would choose their replacements.
Often referred to as the "Missouri plan," this approach is the best way to take politics out of the judicial selection process. We long have advocated its adoption in Kentucky, albeit unsuccessfully.
Since this is not the best of all possible worlds, since judges run for election in Kentucky (and have been doing so for well over a century), the goal ought to be keeping those elections as apolitical as possible. But last week's appellate ruling that judicial candidates are free to state their party affiliation and personally engage in campaign fund-raising encourages just the opposite outcome — judicial races that are more politicized, not less.
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And it could get much worse if the court takes a similar stance on the third issue involved in this case, whether judicial candidates can be prohibited from saying how they would rule on certain issues. For now, that question has been sent back to a lower court for further consideration.
While the ruling's assertion that "Elections are elections, and the same First Amendment applies to all of them" is undeniably true, its further argument that government has no business deciding "which issues are worth discussing or debating in a political campaign" misses a key distinction concerning the three branches of government.
Politics falls in the purview of the legislative and executive branches of government. Elected officials of those branches play in the arena where policy decisions are made and the laws of the land are proposed and enacted.
But the judicial branch of government ought to be about fair, equitable and, most important, the just application of the law. By rights, politics has no business playing in this arena, because it can only undermine public trust of the court system by creating the impression that justice is being dispensed on a partisan basis.
Indeed, one key role of the judicial branch of government is assuring that the "politicians" in the other two branches of government don't trample on the Constitution and the rights of the people.
From that perspective, judicial elections, while they most definitely are elections, should not be painted with the same "political campaign" brush that applies to elections in the legislative and executive branches. Kentucky needs judges who are elected not on the basis of their party affiliation or their pledge to rule one way or the other on a given issue, but rather on the basis of their qualifications, their legal experience and their willingness to adhere to the principle of "justice for all."
Last week's ruling makes it more likely Kentucky judges of the future will be elected on the basis of their political beliefs and will let those beliefs influence their performance on the bench, a circumstance that is unlikely to produce justice for all.
Anyone for the Missouri plan now?
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