Should a Democrat Try DeLay?
As you might recall, Tom DeLay's petition to have his case heard by a different judge will be decided today. Why does DeLay want a new judge? Because the one currently assigned, Bob Perkins, donated some $3,400 to Democratic causes, including MoveOn.org. B.B. Schraub, the administrative judge to whom the petition was referred, is a Republican. Schraub himself has donated at least $6,400 to Republican campaigns. Schraub, in turn, assigned the case to retired state district judge C.W. Duncan, who now goes in as needed in the capacity of "visiting judge."
But if the DeLay case is reassigned, isn't it just as likely that the new judge will have contributed to candidates or causes on one side of the other? What effect will DeLay's request have in a state where all the judges are elected and thus are in some way beholden to some party's interest?
When I posed this question to a Texas lawyer familiar with the DeLay prosecution, he responded that a decision in granting DeLay's request could bring the Texas system to its knees. (Those weren't his exact words -- the notebook that contained those was in a bag that left my possession by unlawful means.*) His point was that if suddenly judges can be forced to recuse themselves because of their political affiliation, who would be left to try the political cases?
Of course, even if such a precedent were to be set, there would still be a few judges who could be considered uninfluenced enough to preside over those cases. By the reporting I've seen so far, it looks like Duncan is the sort of judge who would qualify.
NewsMax carries the Associated Press story on Duncan -- unfortunately AP gave it the misleading headline "Democrat to Decide DeLay's Judge Motion." The article itself, however, seems to suggest that the only thing that would point to Duncan being a Democrat is the fact that he was appointed by a Democratic governor way back in 1978. (He was officially elected to the position two years later, and then re-elected in 1984.) Maybe they also checked his voter registration? I have no idea.
What we do know is that he's 81; he's retired, so presumably not beholden to any special interest; and over the last 15 years or so he's reportedly given money to campaigns of both Democrats and Republicans. His reputation, according to the Austin American-Statesman and San Antonio Express-News is that of an objective mediator.
(Isn't that what all judges should be?)
Debater Eric passes along this tidbit: Virginia has a system where judges are appointed by the governor for set terms, but reappointments are done with the help of a performance evaluation. The evaluation is based on things like percentage of decisions overturned, reviews by attorneys who've appeared before the court, and surveys filled out by jury members.
I couldn't find any links to reference materials confirming that this is in fact the state's system (anyone know of any?) but if true, it seems eminently sensible. Appointees aren't subject to the whims of the masses in elections, but they are nonetheless accountable for their performance. (Speaking of political offices where popular vote might not be the best means of selection, one of these days we'll have a thread on the 17th amendment. That should be fun.)
What do you think, Debaters? Is politicization a flaw inherent in any system in which judges are elected? What about a system of appointments with performance evaluation, like in Virginia? Would it solve the politicization problem if only people who didn't contribute in any way to political campaigns could be appointed?
By Emily Messner |
November 1, 2005; 5:14 AM ET
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