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Electing judges

MASSACHUSETTS Superior Court judges operate today much as the judges did in John Adams's time: traveling with their books to a different courthouse each month, hearing the cases that are ready for trial, and then moving on. Unlike our siblings of the robe in similar courts of general jurisdiction in most other states, we are allowed neither permanent chambers, law libraries, personal secretaries, nor assigned clerks. Like itinerant preachers, we ride the circuit, serving justice, but often, for lack of proper judicial tools, feeling like someone digging the Panama Canal with a toothpick.

Yet despite the primitive working conditions the job is great fun. And on those rare occasions when juridical self-pity may tug at the robe, I can always gain a touch of solace by remembering that Massachusetts is one of the few states that does not force judges to stand for election.

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Please understand. My abhorrence of an elected judiciary does not arise from elitism or a belief that courts and their personnel operate more effectively when insulated from their employers, the people.

On the contrary, I delight in open courtrooms, open transaction of the public business, and open accountability for judicial sins. I think judges should explain their decisions and the sentences they impose.

I even acknowledge the value of lay-member judicial conduct commissions.

Public scrutiny and criticism of courts are, however, quite different from popular selection and -- worse -- popular retention of judges.

Whether the mechanism is direct election or yes-no (i.e., stay-go) performance referendum, the basic questions are always the same: Do you think Lawyer X will be a better judge than Lawyer Y? Do you think Lawyer A will be a better judge than the incumbent, Judge B? Do you like the way Judge C judges?

My difficulty with the admixture of the bench with the electorial process is not an elitist presumption (or presumptuousness) that only legally trained minds are qualified to decide a judge's qualifications. On the contrary, nonlawyers (and especially nonjudges) are probably better able to sense or articulate a judge's fitness.

The problem arises from two inherent characteristics of vote-getting: the needs to please and to advertise.

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A judge who wants the voters to let him/her keep the robe has to devote some degree of thought to the possible unpopularity of any given decision.

I am sure some elected judges will swear that the popularity consequences of a decision do not affect them. As a nonelected judge who has worked with and talked to many others similarly placed, I wonder. Total absence of the emotions does not seem to be a prevalent -- or even desirable -- condition. All judges properly pay some attention to public attitudes. That is how the law grows and changes. It is, however, one thing to consider the community's views; it is quite another to shape your official conduct to those views out of concern for your position.

The second great vice of judicial elections comes from the media-oriented way our society conducts election campaigns. It takes money to gain or keep elected office, more money than even a successful practitioner can amass. A judicial candidate has to raise funds the way any politician does, by obtaining contributions.

Perhaps many people give a judicial candidate money out of a sincere desire for better courts. Others, even a non-cynic might believe, give because they want to be on the judge's good side.

Because the people who have the most to gain from this kind of favor are the lawyers who practice before the judge, we have only two choices: Either no contributor can appear in the judge's court; or the judge cannot escape conflict of interest.

The first alternative is obviously impractical. To test the validity of the second, I merely ask: If you were being sued, would you be content to have your opponent represented by a lawyer who had helped line the judge's electoral war chest?

All this is why, as I pack my few books into the milk crate that is my traveling library, I realize the local arrangement has some advantages.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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