Bay State benefits from having its judges appointed for life

MASSACHUSETTS courts are hardly perfect. Judges, like the rest of us, occasionally make mistakes. But on balance they are conscientious and generally a credit to the bench and to the commonwealth. The caliber of the state's judiciary compares favorably with that anywhere in the nation, despite criticisms leveled at certain judges from time to time by those rankled at the way their cases were handled. It's simply impossible to please everyone.

One of the great strengths of the Massachusetts courts is the substantial independence from outside pressure enjoyed by those on the bench.

Unlike most states, once appointed here a judge has the job until age 70, unless removed for incompetence or misconduct. Because of this protection, Bay State judges are free to exercise their best judgment, even if it conflicts with the sentiments of a substantial number of people. In some instances, especially in litigation involving emotion-charged or heavily politicized issues, that might be difficult if members of the judiciary were subject to reappointment or reelection.

Massachusetts is one of just three states where all judges have what amounts to a permanent job until mandatory retirement at 70. The other states are New Hampshire and Rhode Island.

The methods of filling judgeships vary widely from coast to coast. Trial-court judges in 15 states, including Massachusetts, are chosen by the governor. But in all but four of them the selection is limited to those nominated by a special screening panel. Three states let their legislatures pick judges. And in the remaining 32 states, judges are chosen through nonpartisan elections in 17 and partisan elections in 15.

Clearly justice is not a political matter nor should it be influenced by what might be popular with those holding public office or a large bloc of citizens.

The question of electing certain judges or restricting appointments to the bench for a specific term was not addressed by the special commission whose recommendations led to reorganization of the Massachusetts court system in July 1978. The blue-ribbon panel, chaired by Harvard law Prof. Archibald Cox, almost certainly could have considered such changes, had it felt them advisable.

But why tinker with something that has worked well, even though not always to everyone's satisfaction?

Over the years, Bay State lawmakers in their wisdom have rejected proposals aimed at giving judges less independence by electing or appointing them to a set term.

While on the surface this idea might have some appeal, it could result in packing the courts with judges who have landed on the bench through political popularity. Average citizens, as well-intentioned as they may be, simply are not close enough to the courts to know what it takes to be a good judge or whether a member of the bench should be retained or replaced.

It costs money to run for office, and those running for the judiciary might have to raise large sums that could compromise their independence from special interests eager for ``a friend in court.''

Certainly judges should be accountable to the public. That's something that can be achieved outside of the political process.

If a judge is incompetent, intemporate in his actions, or in any way discredits the court system, this can be dealt with through the state's Judicial Conduct Commission. That less-than-decade-old panel, made up of laymen, lawyers, and judges, is responsible for looking into complaints brought to its attention.

Its recommendations to the state Supreme Court can lead to disciplining those found to have stepped out of line, and in extreme cases a judge can be ousted from the bench.

Instead of subjecting judges to reelection or reappointment every few years, a better arrangement might be to expand the authority of the Judicial Conduct Commission not merely to recommend censure of bad judges but in extreme cases to order an offending judge's removal from the bench.

An ousted judge could then appeal to the full bench of the state Supreme Court, which could by two-thirds vote, after appropriate public hearings, overturn the removal.

Obviously, it should not be too easy to fire a judge. At the same time, however, if there are members of the Massachusetts bench who are inconsiderate of the rights of others or in any way misbehave, in or out of the courtroom, they should not be tolerated. It should be possible to get rid of them, provided that in the process it is justice rather than politics that is served.

George Merry is a longtime observer of the Massachusetts political scene.

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