An editorial in the Washington Post on Monday titled "Judges for sale" included a statistic I found amazing.
Thirty-eight states elect supreme court justices (some call them "judges"). Of those, only eight elect them by partisan ballot. But that's not the statistic I'm talking about.
The statistic that amazed me is that of the money spent funding judicial campaigns between 2000 and 2009, $154 million was spent in the eight states with partisan elections and only $51 million was spent in the other 30!
Think of it - 75 percent of the money was spent in the 21 percent of states (with judicial elections) where the elections are partisan.
West Virginia is one of those eight states with partisan elections for the state Supreme Court. We also make all of our other judicial elections partisan.
I've said for years that judicial elections, if they are to be held at all, should be non-partisan. I think it's fundamentally wrong to say to a person who seeks an office the conduct of which is supposed to be non-partisan that "you must first declare a fundamental partisanship."
A judge is supposed to be like a referee at an athletic contest - completely neutral. He or she has no business wearing a team jersey.
Having partisan judicial elections causes judges to think more like legislators than they should. Judges should properly focus on what the law is. Legislators should properly focus on what the law ought to be. The roles are fundamentally different.
Several years ago I voted for an amendment to a bill that would have made judicial elections non-partisan - it's the only time since I've been in the Legislature that a vote has been taken on the issue. It lost.
I think part of the reason that it's been difficult to do away with partisan judicial elections is that some opponents of partisan elections have demagogued the issue for their own political desires. They've overstated the problem in a way that makes it difficult for those of us who want a change to win converts to our cause.
You hear phrases like "West Virginia is tort hell" from some opponents of partisan elections. That's absurd. We have a problem, but that's not it.
West Virginia is not "tort hell," and saying it is causes many who now support partisan elections to dig in their heels and refuse to listen to what I believe are strong arguments for change.
The real problem is more nuanced.
Given the psychology of human nature, it's difficult for someone elected as a partisan to then credibly say (to himself or herself as well as the public) "I'm not a partisan."
No matter if some psychological superman or superwoman were to get elected running as a partisan, no one would believe he or she could do the job in a completely non-partisan manner, even if the person were the rarity who could pull it off.
I think continuing to have partisan elections reinforces the erroneous perception that West Virginia is "tort hell."
I can support either non-partisan elections or some type of appointment process, possibly followed by what is called a "retention" election (as long as it's non-partisan).
Under a retention election, a judge is appointed for a period of time and must then face the voters (on his or her own - no opponent) to be "retained" for an additional period of time.
The Post editorial did allude to some good news on this front. It noted that a few states have adopted public financing for judicial elections, which it believes (correctly, I think) will seriously reduce the dependence on campaign contributions by candidates for judicial office.
West Virginia is one of those states.
I supported the bill that created a "pilot project" for public financing of West Virginia State Supreme Court races.
But this action does nothing to rid us of the spirit of partisanship that permeates our judiciary.
I am convinced that elections for judges should be either non-partisan or non-existent.