The Alabama Scene

Should we change the way judges are chosen?

In a recently released national poll a sizeable majority in both political parties believe campaign donations affect judicial decisions. They also want changes in systems like we have in Alabama where judges are elected in partisan political campaigns.
Over two-thirds of the respondents in the poll expressed distrust in how campaign money from special interests affects justice, according to the judicial watchdog group Justice at Stake, which commissioned the poll.
The Harris poll showed that 71 percent of Democrats and 70 percent of Republicans thought political donations affect judicial decisions. Eighty-two percent of Republicans and 79 percent of Democrats thought judges should not be involved in cases where a party in a case made donations of over $10,000 to the judge. Eighty-eight percent of Republicans and 86 percent of Democrats say contributors and the amounts they give should be disclosed.
Nearly 70 percent of those surveyed would approve a system in which judges are appointed by some type of judicial nominating commission and face voters in retention elections.
We are one of seven states that hold partisan elections for most judicial positions. Fourteen states have nonpartisan elections. Appointment with retention elections are used in 24 states.
Judges and lawyer groups have often made efforts to change our system of electing judges. Chief Justice Sue Bell Cobb and the Alabama State Bar have made efforts to change to a system of appointment and retention elections. Both have submitted legislation, but to no avail.

Wallace killed 1973 effort
Perhaps the best chance such a change had was in 1973 when a Citizens Conference on State Courts to promote reform for Alabama’s judicial system was formed under the leadership of then Chief Justice Howell Heflin.
The conference was poised to adopt recommending a change to a merit selection system of selecting judges, which had been suggested as a method to be considered by the report of a Constitutional Revision Commission appointed by Gov. Albert Brewer in 1969.
As that recommendation moved closer to being placed in the legislation to be introduced in 1973, Heflin got a call from Gov. George Wallace. I was in Heflin’s office as he talked with the governor over his speaker phone.  After the usual pleasantries Wallace intoned: “Now Howell I hear y’all are gonna put stuff in that judicial reform that would take away the people’s right to vote on judges.  Now Howell, I want to help y’all on this but if you do that…well I’m just gonna have to stump the state against it.”
The following week at a meeting of the Citizens Conference in Birmingham Heflin addressed the group, saying about merit selection… “It looks like we’re going to have to put that on the ‘back burner’ for awhile,” then recounted his conversation with Wallace.
It has remained on the back burner and will likely do so until something really horrible and egregious happens.  I thought the recent decision by the Supreme Court denying Alabama citizens any recovery from the ExxonMobil case might be a catalyst, but that doesn’t appear to have caused a cry for change.

Judicial productivity is an issue
Judicial productivity has become an issue in two Supreme Court races this year.  Bessemer Circuit Judge Mac Parsons, seeking to unseat Justice Tom Parker has raised the issue over Parker’s being the slowest on the court in deciding cases.  In fact, during Parker’s first year in office he didn’t produce a single opinion and his record has not been a lot better since then.
From 2005-2009, Parker took five times longer to write decisions than the speediest justices. And, during the 12 month 2008-09 court term Parker has taken three times longer than the court average to write decisions according to the latest statistics available.
Second to Parker on the “slow” list is another justice up for election this year. Mike Bolin has lagged behind the court average on making decisions, but still has been faster than Parker who, on average, takes nearly 419 days to write decisions on pending appeals. Bolin’s average was 281 days. The fastest was Justice Tom Woodall, who averaged 78 days.
Speed isn’t everything but the old adage…  “Justice Delayed is Justice Denied” does hold a great deal of truth.

Bob Martin is editor and publisher of The Montgomery Independent.  Email him at: bob@montgomeryindependent.com