And anyone who can find any similarity between Bork and Brandeis knows absolutely nothing about the body of work of either. Robert Bork may have been the most politically active candidate to the high court since Hugo Black. Remember he accepted the job of firing Archibald Cox when no one else would? But his intellect could not compare with the Alabaman’s.

Jay: Your point about community standards is so well taken that I have changed my opinion. Continue to elect circuit, district, and probate judges. What can we do to better inform voters about local judicial candidates?

Richard: I have never won an intellectual battle with you and am not about to send precious few brain cells left into battle with you on this one. In this chess game, you’ve out-thunk me. It would be dreadful to entice the State Bar into partisan gamesmanship. You and Greg should enter a room to produce a judicial nominating and vetting plan that produces top-notch judicial candidates, that allows a governor to nominate those who subscibe to his or her principles, and that also limits a governor to appoint just any crony or ideologically pure soul to the bench. In a half-hour, you and Greg would produce the right plan.

Greg: Few have your experience in the vetting process. I’m concerned about giving a governor carte blanche. Could we create a recommending group comprised of distinguished peers (people who know what makes a good judge) who may be the State Bar’s pooh-bahs and well-vetted, objective leaders? I have nearly full faith in a governor’s appointment decisions, but still would like an external body to recommend the cream of the crop. Regarding the limit on service, maybe we meet halfway: There’s a fixed, long term but some cap (like age) on service. I don’t think that someone in their 80′s or 90′s captures the nuances of the modern, and I fear many perfectly talented people are denied entry into judgeships because judges stay too long.

Nick: I suspect that you’re taking a Jeffersonian point of view, but dislike such characterizations without having a one-on-one conversation. I strongly stilt toward placing intellectual powers and strong legal reasoning on benches, even at most voters’ expense. I greatly respect the instincts of voters when it comes to filling executive and legislative offices; I’m less than convinced that voters have sharp enough antennae to pick winners and losers among judicial candidates.

Jim: I love your (paraphrased) comment about flaws with modification! Your point appears to be that voters entrust decisions on who should be a judge exclusively to the governor and legislators that they elect on partisan labels. I love the parties. I respect much strong parties wielding strong influence over the setting of public policy. I can’t bring myself, however, to believing that partisanship and/or cronyism should determine who presides over my trial or appeal. We have, at least for now, a highly polarized party system of governance and policy setting. For two decades, that gulf has debauched a highly-desired impartiality by the judiciary. That, I much mourn. If it ever happens, I don’t wish to appear before a hardline and puritanical Democratic or Republican judge at any level. I’ve changed my opinion, because of Jay’s persuasive reasoning, about continuing to elect local judges. But, when you introduce the inherit goodness of partisanship into the selection of all judges, I have to rethink my reasoning. And, while I have no problem with your using a bicameral legislative review system, I abhor the two-chambered legislature (see earlier essays on Dome), and I do not believe that legislators would depart from partisanship to approve or disapprove candidates.

Reliance upon the state bar for nominee selection may exclude worthy candidates that may include law professors, certainly a source of high-merit talent. A flaw of merit selction plans has been the selection of talent that is not diverse and usually limited to those active in the bar association.

A joint chamber rejection process will most likely ensure that it will be a bipartisan process that a rule of a 2/3 vote may not ensure.

Legitimization through retention elections just seems unnecessary for a process tilted towards bipartisan screening of gubernatorial nominess. It would be better to just limit terms to ten years or require reeappointment after five years by concurrent confirmation votes of the house and senate. Legitimization would come from the democratically elected representatives instead of a democratic election.

Ruff’s plan would have more merit if it did away with judicial elections entirely and it did not require screening of candidates by the state bar association. Greater involvment of the legislators in rejection votes and subsequent confirmation votes would address the “democratic legitimacy” character of the judicial selection process and improve the choice process by a far more informed set of people, the democratically elected legislators of both chambers.

If the citizens of Michigan decide to allow the Governor to appoint the judiciary, I think the idea of limiting the Governor’s choices to a list of three submitted by the Michigan Bar is far too restrictive. I have the utmost respect for the Michigan Bar’s judicial evaluation committee (or whatever they are now called). Indeed, I participated in their interview process during the Blanchard Administration, and found it extremely valuable when making recommendations to judicial positions to the Governor. I think the Michigan Bar’s role is important, and I can see limiting the gubernatorial choice to persons who receive a qualified or higher rating from the bar. The people elect the Governor, they do not vote for the state bar association.

I would also argue that Craig’s term limit on the appointed judges may be too restrictive. After all, when trying to get the best and brightest attorneys to serve in the judiciary, fewer, not more restrictions are needed. If the judiciary is a calling for an experienced, but young lawyer, why would we cut them out of their career when they reach the mid 50’s? After all, one of the attractive aspects of the federal bench is the appointment for life concept, keeping the judges from worrying that decisions they make will not impact their future livelihoods. Likewise, I tend to think that having elections to reaffirm the appointments on a state and local level also may restrict the number of qualified attorneys willing to take the bench, even if your opponent is “no”.

I applaud Craig for his stance on this “elitist” proposal. I definitely believe there is merit in adopting a gubernatorial judicial appointment system. It is only in the details we disagree

You have a local judge make some bonehead rulings that run contrary to community standards, there is little that the public can do if local judges were appointed.

The up or down vote on the appointment seems pointless, because it offers no choice. A Governor could simply come back with a crummier pick in the next round and wear out the electorate. Having the electorate be a rubber stamp on local judges does not serve the needs of that community. Without the need to campaign, judges will become complacent.

The 3-5% of judges that do get knocked off are defeated because the challenger offered the people a choice. What choice do the people have in a up or down vote?

There have been gubernatorial appointments that have not been received well in their areas (ex: Bowler in Ionia) because the appointment was seen as political cronyism. Your process does not eliminate the cronyism factor in local judgeships. The local electorate should have the right to have their voice heard.