On Voting Day, One Lawyer Rocks the 'Don't Vote'

[WSJ_law_blog]

Today, in a lot of jurisdictions, people are off to the voting booth to cast their votes for, say, Bloomberg or Thompson; Corzine or Christie; Deeds or McDonnell. Those are the contests — the big-city mayoral and gubernatorial — that seem to get the most airtime.

But in many states, judges are also up for election or relection. And that brings us to a thoughtful essay penned by J. Daniel Hull, a partner at Hull McGuire in Pittsburgh, on his blog, called What About Clients?

Hull exhorts readers, first of all, to refuse to participate in judicial elections. His opening, frankly, made us chuckle:

Election Day Reminder: If you can vote at the polls for a state judiciary candidate today, please don’t. Raise your aspirations. Go to the track, play pinball, drink Ripple, watch Gong Show reruns, or visit that “Leather World” alternative lifestyle clothing-and-book store on Route 73 you’ve always wondered about.

He continues, in a more serious mien:

The popular election of state judges–permitted in some aspect in a clear majority of the states–gives the appearance of justice being “for sale.” Elected judges can be especially “bad” for good clients who do business all over the U.S. and the world. Even when elected judges are “good”–and, to be fair, there are some great ones–state systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.

The point: Judges should not have “constituents,” i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

Generally county-based, American litigation at a state level is already frustratingly local and provincial for “outsider defendants”–businesses from other U.S. states and other nations sued in local state courts–who cannot remove to federal courts, the forums where federal judges can and should protect them from local prejudice.

American states that still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect–and also poses risks–but it is far better than what most American states currently have in place. It’s time for American states to grow up.

Hull makes his arguments forcefully — even if we’ve heard them before, in one form or another. But what we haven’t thought about, frankly, is Hull’s point at the end of the post — about the creation of diversity jurisdiction.

He writes:

One reason that federal diversity jurisdiction was created in the first place was because of the framers’ concern that prejudices of state judges toward out-of-state persons would unfairly affect outcomes in trial courts. . . . Over 200 years later, our current systems in the states make that local prejudice almost inevitable.

LBers, any thoughts?