Among the bills pending this session in the House of Delegates is House Bill 4544, Governor Underwood’s proposal for the nonpartisan election of Justices of the Supreme Court of Appeals. I support the proposed change to nonpartisan elections for Justices of the Supreme Court. Herewith, my reasoning.

In our shared understanding, it is manifest that our judicial officers be fair and impartial. Our concept of a just society envisions as judges men and women who are studied in the law and independent, insulated from political influences. Upon the bench we hope to see jurists who will decide cases upon a dispassionate reading of the law and the reasoned application of the law to the facts before them.

It was observed by Alexander Hamilton that the method of selecting judges and the length of their tenure in office would each have an impact on whether or not the judiciary would be composed of persons meeting the criteria discussed above.

At the constitutional convention in Philadelphia in 1787, the founding fathers wrote bold provisions into the Constitution to ensure independence of the federal judiciary. Article 2 of the United States Constitution gives to the President the power, with the "Advice and Consent of the Senate," to appoint the Justices of the U.S. Supreme Court and the judges of all the inferior federal courts. Article 3, Section 1 of the United States Constitution provides that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior ...."

Alexander Hamilton’s eloquent argument in Federalist No. 78 in favor of appointing federal judges for life is well known to all students of the Constitution. He saw it as a means to ensure both the independence and the survival of the "weakest of the three" branches of the government:

… The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments…..

….though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ``there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

For the selection of its judiciary, West Virginia has taken a different course. Our judges do not hold their offices for life. Neither are they appointed. Rather, they are elected by the citizens, a franchise which the vast majority of the citizenry desire clearly to retain. Article 8, Section 2 of the West Virginia Constitution provides as follows:

The supreme court of appeals shall consist of five justices. A majority of the justices of the court shall constitute a quorum for the transaction of business.

The justices shall be elected by the voters of the State for a term of twelve years, unless sooner removed or retired as authorized in this article. The legislature may prescribe by law whether the election of such justices is to be on a partisan or nonpartisan basis.

The twelve-year term of office for Justices of the Supreme Court is the longest term of any office prescribed by the West Virginia Constitution. This lengthy tenure is designed to achieve independence, insulating the Justices of the Supreme Court from having to pay frequent homage to the ebb and flow of a rapidly shifting and altogether elusive tide of public opinion. A further step toward independence should now be taken. The time has now come for the Legislature to enact proper laws making nonpartisan the election of the Supreme Court.

Some of those who advocate retention of the status quo of partisan elections are often heard to say that knowing a judicial candidate’s political party affiliation provides useful information about the candidate. That statement evinces a lack of understanding of the unique role of the judicial branch of our government.

The function of the judiciary is to read and apply the law as it is given, resolving such questions of construction as may be presented by vague or conflicting enactments and examining the constitutionality of enactments when that is called into question. Once having ascertained what the law is, the role of the judiciary is then to render judgment in particular cases by applying the law, as it may be fairly read, to the facts and circumstances at hand. In the performance of this duty, it is axiomatic that a judge’s partisan, political affiliation should have no bearing at all.

The hallmark of a great jurist is his or her ability and willingness to subjugate his or her personal view of what the law should be to a fair and dispassionate inquiry as to what the law is. No matter how deeply held might be a judge’s conviction that a change in the law would have beneficial effects, a judge must exercise restraint, declining to substitute his or her own view for that which has been produced by the constitutional process. When the judiciary can indulge itself in the rewriting of the law, even in circumstances when no person would argue against the fairness of the change, it denigrates the constitutional process by which law is made, and ultimately, the law itself.

The power to change the law, even for a result universally exclaimed as excellent in a particular case, is, of course, also the power to change the law at any time and for any purpose. The legacy of this power is despotism. As Hamilton said "liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments." Is there any difference to be discerned between the unwelcome union of judicial and legislative branches of the government, on the one hand, and the usurpation of the legislative power by the judicial branch, on the other?

In contrast, it is eminently desirable that a legislative candidate’s views and philosophies be known. It is the legislature’s constitutional duty to decide what the law should be, and then to craft it accordingly. This responsibility is executed in the tempest of public debate upon principles underpinning the public good to reflect the will of the people. In the context of a legislative office, a legislative candidate’s individual beliefs are absolutely relevant. Those beliefs may be reflected in a legislator’s voting record, in his or her pronouncements upon issues of the moment, and even in the platform of his or her political party. That sort of advance notice of what one might do in the execution of the office, while desirable for legislative candidates, is anathema for judicial candidates.

Canon 5(A)(3)(d) of the Code of Judicial Conduct prohibits a judicial candidate from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Further, a judicial candidate may not "make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court."

To the extent that donning a party label may shed some light on a person’s philosophical or ideological beliefs, with respect to candidates for judicial office, not only is that information irrelevant to the performance of the duties of the office, it is also arguably an inappropriate expression under Canon 5(A)(3)(d).

It is imperative that we come to understand that as a natural consequence of treating judicial candidates like legislative candidates, in having them declare their partisan affiliations as they announce their candidacies, our state will be more likely to elect justices who legislate through their judgments. This phenomenon undermines the law itself. When the rule of law and its constitutional processes are undermined, confidence in our government erodes. The result is cynicism and an unwillingness of the public to adhere to the law. Ultimately, it could mean the dissolution of our social compact.

Does not our social compact with each other in this great Republic, the compact that is forged by the articles of our federal and state constitutions, require that the law remain above us all? And if that is so, how could it be that the law is different when read by a Democrat than when read by a Republican? Is our law so inconstant that its meaning depends solely on the partisan affiliation of the reader? Pray not, for if that be true, then how could it be said that we have any law at all? Are we not then governed solely by the whims of men, returned to precisely the same station from which our founders sought escape two hundred and twenty-five years ago?

If we are to remain true to our expressed creed that the law is above us all, then it should make no difference whether the judge who reads the law is a Republican, Democrat, Libertarian, Independent, or Whig. Furthermore, must not it be acknowledged also that independence, an attribute desirable in judicial officers, is impeded by process of partisan elections? When a judicial candidate seeks the nomination of a political party, is there not an inherent conflict between independence, on the one hand, and the need to appease people whose nomination the candidate seeks, on the other? Is not a political party but an association of likeminded people who have banded together specifically for the purpose of advancing a political philosophy? Does not intellectual honesty require the recognition of this conflict?

The irreconcilabilty of judicial duty with partisan elections is further evident in an examination of the Code of Judicial Conduct. Consider Canon 3(B)(2):

… A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

The prohibitions contained in Canon 5(A) of the Code of Judicial Conduct put an even finer point on tensions between permissible judicial conduct and partisan politics:

...[A] judge or a candidate for election or appointment to judicial office shall not:

(a) act as a leader or hold an office in a political organization;

(b) publicly endorse or publicly oppose another candidate for public office;

(c) make speeches on behalf of a political organization;

(d) publicly display any campaign paraphernalia in any area where judicial activities are conducted or knowingly permit any such display;

(e) solicit funds for a political organization or candidate.

The time has come for us to end the illusion that the selection of the Justices of the Supreme Court in partisan elections is somehow compatible with the highest attributes we seek to instill in our judiciary and our judicial candidates. In his speech to the State on January 12, 2000, Governor Underwood proposed the nonpartisan election of our Supreme Court. We who have previously observed and discussed the inadequacies of the status quo now hope that Governor Underwood’s public declaration will create the momentum needed to effect change. The time has come for West Virginia to join the other forty-two states which have found methods for the selection of the justices of their highest courts. Surely, the nonpartisan election of the Supreme Court is superior to our present system of partisan elections.