Change judge selection to promote judiciary right-sizing

Yeah, as was feared in this space and elsewhere, they punted. With that reality in mind, advocates of right-sized government in Louisiana now must look beyond this setback in how to reform the bloated Louisiana judicial system.

At least give credit to a special committee made up of legislators, judges, and lay people most connected to the judicial function of state and local government that gave every indication it would miss a legally-imposed Feb. 15 deadline on producing final reports on a full slate of judicial bodies, investigating questions about appropriate caseloads and resources for the three parish, five appellate circuit courts, and 48 district and 49 city court systems in the state. After three years, it produced something by this deadline on 8 court systems – the easiest with those being the parish and circuits courts – and left the other 92.4 percent off by boldly declaring more study was needed, and now its members can go congratulate themselves for being on time.

But incredibly off target, as New Orleans’ Bureau of Government Research has outlined. Past efforts by the group, embarrassingly for the special panel using that committee’s own methodology, demonstrated vast inequities in judicial resources across the state that indicated perhaps a quarter of all courts were superfluous, thereby rendering them as little more needed than as vehicles to transfer taxpayer wealth to a small group of elected officials and bureaucrats. It urged the commission, which appeared to dither with few meetings and no sense of urgency in scheduling activities to meet the statutory deadline to produce reports with meaningful conclusions about significant reform measures or reasons why that wasn’t needed, to be on time because this would be the last regular session of the Legislature before elections for roughly four-fifths of judicial slots this fall. The Constitution prohibits shortening the lengths of terms for judges, so any solution that includes eliminating judgeships this means a wait until 2020 for any action, with the remainder prior to 2016, 2018, and 2022.

What was produced was little more than a whitewash. It gives some statistics on the various systems and the feelings of judges and judicial personnel, but does no real analysis of the appropriateness of the size of the systems as a whole. And to really stick it in the eyes of taxpayers, among the very few conclusions reached was that among the few courts of which there was any attempt to analyze resource appropriateness, for appellate courts there was a recommendation to create more appellate judgeships.

This feeble exercise in self-justification should not surprise, for three reasons. One, being as 33 members of the House are attorneys and five others who have worked in allied judicial fields, and that 12 senators are attorneys with a couple of others having worked in allied fields, means that over 36 percent of legislators have some professional and career connection with the judicial system. Most still are involved in it in some way, which means they interact with judges and their courts on a regular basis. And the last thing they want to be known for around the courthouse is in supporting legislation that might put some of the courthouse crowd out of work, for this might have something to do with how their matters in front of courts get disposed.

Some, however, would want as many judgeships around as possible because they have career ambitions in those directions. Like tigers that turn to dining on humans, their legislative service allows them to acquire a taste for living off of taxpayers with a chance for doing even more of what they want with even fewer constraints than with being legislators – and often getting six-figure salaries for doing it with a longer job guarantee, as sitting judges rarely lose reelection. Therefore, any reduction in judgeships turns self-defeating when it comes time for them to exit, forcibly by term limits or otherwise, as that only reduces the number of parachutes available.

Finally, given that roughly half of (and obviously all rural) state judicial districts have one or two judges per parish, for those judges that choose to wield it along with sheriffs and district attorneys they can exert disproportionate political power in their districts by virtue of being one of those very few parish-wide elected officials. Thus, they may have influence over campaign fortunes, and as legislators themselves get elected from these districts, they may not want to rile into political opposition to them those judges who embrace the powerbroker role by putting them out of a job with reform.

Naturally, this report will be used by a number of legislators with feet of clay to do nothing in the upcoming session. Which means that interests wishing to create a judiciary appropriately sized for its actual workload now must embrace a longer term strategy to effect reform. And increased boldness might serve this cause well.

One tactic to increase success probability would be to change the conception of judgeships as political plums by changing the selection method. The partisan election scheme could be changed to what is known as the “Missouri Plan,” where a judge initially is appointed and then subsequently runs in relatively frequent retention elections in order to keep the job, or if voters reject him to start the process anew. As an alternative, instead of retention election, an easier recall process can be formulated.

Especially if some kind of merit qualifications were included in the appointment process, this would make the presence of a judgeship much less likely to become an opportunity for legislators to position themselves to move into the job, given the variables in timing and vagaries of appointment, making them less hesitant to introduce reform. It also would dilute judges’ power over local politics in that they would have less security over their jobs, especially in the appointive term, which might embolden legislators to make changes.

Changing the selection system obviously looms as a long-term project, but given the same is true of establishing the right number of judgeships, synergy between the two can get these two most important reforms of the Louisiana judicial system into place, with a goal of 2020 for implementing the changeover for both. Vested interests won this round, even as the people racked up a small victory for even getting the size issue on the agenda, but that need not be the outcome in the future.