Should Utah elect its judges? Just let ‘Miracle on 34th Street’ give you the answer

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SALT LAKE CITY — My guess is a lot of Utahns cringe at the thought of the political ads that surely are coming this year, complete with out-of-focus shots of an opposing candidate, sinister music and the ominous voice of a narrator telling us why we definitely should not vote for so and so.

So, how would you feel about a bunch of similar ads directed at judges, who are supposed to decide matters of life and liberty with impartiality?

Sen. Dan McCay, R-Riverton, has introduced a proposed constitutional amendment that would allow Utahns to elect all judges in “courts of record.” Supreme Court justices would serve for six-year terms. All other judges would serve for four. When their terms are up, they would have to raise money, court donors and carry on virtually the same as any other candidate up for reelection, with the exception that ethical rules would prohibit them from saying how they would decide specific cases.

The elections would be nonpartisan, but as we know from numerous nonpartisan mayoral elections in the state, the party candidates prefer is hardly a secret, especially in the more high-profile races.

First of all, a bit of perspective. The majority of states already elect judges. Some even do so in partisan races.

Now, some more perspective. The United States is virtually alone in the world in this practice.

And now for the final perspective. None of this matters. Didn’t your mother teach you not to do something just because everyone else was or wasn’t doing it?

Just about all you need to know about electing judges can be learned by watching “Miracle on 34th Street,” either the old or new versions. The judge in that film has to decide whether Santa Claus is real, but that’s not the important thing. He has to decide this with an eye toward his own reelection.

Of course, these pressures combine to produce what, in the movie at least, seems to be one of the greatest judicial decisions in history, but that’s Hollywood.

Here’s reality: The Brennan Center did a study a couple of years back that looked at the increasing cost of campaigning for judgeships nationwide and the possible influence on judicial decisions. The study concluded that trial judges in Pennsylvania and Washington handed down longer sentences to criminals convicted of felonies the closer sentencing was to an election. State supreme court justices were found to be less likely to rule in favor of criminal defendants the more frequently television ads aired during an election season.

Also, appellate judges in states where the public tended to support capital punishment were more likely to affirm death sentences than in states where the public didn’t support such a thing.

I’m guessing a lot of readers might not mind that last one. One of the strongest arguments in favor of electing judges is that it is a transparent system. No selection system can be completely free from outside influences. The trick is to find a system that minimizes these, or at least forces them into the open.

But really, introducing the crass elements of campaigning into what ought to be an impartial, fact-based system of justice seems debasing.

I tried, without success, to reach Sen. McCay to ask him what problem he hopes to solve by getting Utahns to elect judges.

In Utah, the Legislature appoints a Judicial Nominating Commission (no lawmaker may sit on this commission), which sends the governor a list of at least three nominees for each vacant judgeship. The governor then chooses the judge.

These judges then stand for a retention election every few years (depending on the court over which they preside). Voters get to decide whether to retain those judges. The Utah Judicial Performance Evaluation Commission tries to help voters by rating each judge, then posting the results on judges.utah.gov.

Even that is an imperfect process. With a couple of notable exceptions, most judges are retained with little fanfare.

But it makes more sense than adding a bunch of contested judicial elections alongside all the school board and minor county races (assessor, treasurer, recorder, etc.) voters must decide.

McCay’s proposal, SJR8, has been sent to a committee. It probably should stay there.

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