Lawyers Journal

Bad judgment call by Healey

Every several years, there is some public mention of the idea of electing our judges or appointing them for limited terms. The most recent proposal: Lt. Governor and gubernatorial candidate Kerry Healey’s suggestion to create a judicial review board to determine retention of judges every seven years. This plan would require just a little tinkering with our Massachusetts Constitution, a foundation principle of which is that “[I]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” Mass. Const., Article XXIX. This high regard for independence and impartiality was, of course, the very reason our justices were originally given life tenure.

A significant number of states do appoint judges for limited terms, and more than 20 states elect judges in general elections. Often, the experience of other states with judicial rules and procedures which differ from ours provides useful information for the review and revision of our own. Uniform codes and rules, voir dire practices, jury communication rules, ethical standards, judicial administration plans and a long list of others can benefit in their development by comparison to those of other states.

However, the Healey proposal does not appear to be motivated by any need to improve the quality of our judges or any evidence that the judicial selection system in other states is superior. Rather, her plan appears to be a campaign ploy built upon the misguided notion that judges who impose sentences criticized in the media are not doing their jobs. Even though those sentences are within the limits prescribed by the Legislature.

There already exists a constitutional and statutory process for the removal of judges who violate the law and do not fulfill their duties. In all of our history, judges who actually do so are very few and far between. Our laws, including criminal sentences, are established by the Legislature and the governor. If people don’t like lawful sentences ordered by judges, their complaint is not with the judges, but the Legislature.

Further, our judges are subject to ongoing evaluation by both the MBA judicial evaluation program and the court’s own evaluation program. The results of our evaluations show that our judges do an exceedingly good job and that the incidence of inappropriate action or poor performance is very low.

Our judges are appointed until they reach age 70. This removes them from the political arena and relieves them from the need to campaign, fundraise and run for office. Our judges are not politicians. We do not want them campaigning and fund-raising beside our legislators. We want them making the tough decisions, which they do each day, to the best of their abilities, free and independent of political pressures. That is what our Massachusetts Constitution has guaranteed for 225 years. That is what our citizens continue to deserve.

©2014 Massachusetts Bar Association