VCC Magazine Fall-Winter 20-21

V irginia C apitol C onnections , F all 2020/W inter 2021 6 Interpreting the law is inevitablywrapped up with our values. The notion of judges applying the law as if they were following the instructions for making a bookshelf is nothing but fiction. Judicial decisions cannot be neutral in the sense of avoiding reliance on values, and we should not pretend otherwise. At the same time, we surely do not want judges to decide cases based merely on a gut check of their own feelings. Public policy, after all, is supposed to be determined by the will of the people, not the judges. How can the role of values in adjudication be reconciled with the importance our country places on democracy? This difficult question lurks beneath debates about how we select judges. To assess processes for selecting judges, we must first have an understanding of our aims. Some of the aims are relatively straightforward and uncontroversial. Fewwould deny that judges should be qualified, above corruption, and dedicated to the pursuit of justice. It is also often said that the judiciary should be apolitical. Indeed, one of the most common complaints about the process for choosing Virginia’s judges is that it has been excessively politicized. In a country committed to democracy, it is ironic that variations of the term “political” are so often used as a derogatory charge. We elect politicians and then accuse them of “playing politics.” We vote for candidates by party and then denounce the winners for being too partisan. But what is democracy if not a competitive system for making political decisions amidst intense disagreement? Charges that the selection of judges is too political can be confusing because the idea of politicization has more than one meaning. One Virginia’s Judicial Selection Process: The Wrong Kind of ‘Political’ By Stephen Simon sense of politicization simply recognizes that every stage of decision making in each branch of a democratic government involves debates about values: disagreements about what matters most, about individual rights, and what kind of people we aspire to be. The reason we need mechanisms for decision making about public affairs in the first place is that we disagree about such fundamental questions. There is no shame in that. A society where such disagreements had been eradicated would be horrific, fitting only for dystopian stories. We certainly want judges who respect the decisions made by the American people, as expressed through elections and democratic lawmaking procedures. But the interpretation of laws is not algorithmic. Values enter the picture in subtle ways, as when judges give meaning to the broad principles embedded in laws, including the U.S. and Virginia Constitutions. Since values cannot help but play a role in judging, there is a legitimate place for considering the values that a judge might reflect if installed on the bench. Another sense of politicization, however, is more troubling when we are talking about judges. This concerns the tactics that politicians employ in pursuing their aims. There is a crucial difference here in the legislative and judicial contexts. When it comes to legislators, we expect them to cut deals in the course of making policy. A large part of what legislators do is to represent the interests of their constituencies. The trading off of interests against one another is endemic to the process through which large bodies of elected policymakers negotiate toworkable compromises. So long as everyone involved also keeps his or her eye on the larger public interest and is accountable to the electorate, we can accept the prudential calculations and tactical bartering that legislatures engage in as part of the way our democratic machinery operates. Courts, though, are fundamentally different from legislatures in this respect.We should not expect judges to engage in the same kind of horse trading. A judge’s task is not to represent a constituency’s interests but to interpret and apply the law in a principled manner. A court case is where the rubber of the law meets the road of individual lives. Justice requires that people have their civil disputes and criminal prosecutions decided on the basis of principle, not tactical expediency. No one should go to jail because the judge owed a favor. In sum, we should not seek a judiciary that is apolitical in the sense that it pretends to be insulated from the values that inevitably inform every human being’s actions and decisions.We should, however, seek a judiciary that is apolitical in the sense that it decides cases on the basis of the principles that apply to the particular case at hand. What does this mean for debates over how Virginia chooses its judges? It means that the state’s process for selecting judges fosters the kind of politicization that is troubling in the judicial context. Virginia is one of only two states in the country that chooses its judges through legislative elections. In such a system, the selection of judges is too easily subjected to the same kind of horse trading associated with other legislative tasks. There are too many opportunities for the wrong kinds of factors to shape who gets on the bench, and for legislative infighting to place pressure on how the judiciary conducts itself. To make matters worse, judges can retain their positions only if reelected by the General Assembly at the end of their terms. Virginia would do well to consider abandoning legislative election in favor of a system that seeks to diminish the impact of tactical politics on the judiciary. Many states, for instance, empower commissions to recommend a slate of highly qualified candidates, from which the Governor may make appointments. While no system is immune from untoward manipulations, a merit selection process would express a commitment to protecting courts from the wrong kind of politicization, while facilitating the achievement of that end in practice. Stephen A. Simon is Associate Professor of Political Science and Coordinator, Program of Philosophy, Politics, Economics and Law at University of Richmond. You can reach him at ssimon@ richmond.edu WORDSPRINT.COM/VCC-PUBLICATION-ORDERS.HTML Order the 2021 Red Book today! 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