Politics is a messy business. When self-interested elected and non-elected officials participate in the political arena, it is sometimes difficult to create and implement good public policy. To resolve this problem the American founders, relying on common sense, tradition, and the teachings of political theorists, created a constitutional government of separated powers. Such a division does not guarantee perfectly just government all the time, but it does ensure that laws and public policy will be formulated, implemented, and judged by different officials. The founders hoped the end result would be a relatively prudent and fair government. The importance of a constitution is not that it lists specific rights per se, but that it allows for a process of government which in turn protects rights.

   Unfortunately, constitutionalism -- particularly at the state level -- presents ongoing difficulties. Indeed, the Alabama Constitution is an excellent example of the problem of making a clear and beneficial constitution. The problems inherent in the Alabama Constitution have prompted at least six governors to attempt to revise or replace the 1901 document.

   Today we are faced with the question of whether or not the Alabama Constitution ought to be revised. Some argue we should ignore the constitutional challenges that are inherent in our political system; to attempt to alter the current system might only make matters worse. In light of its length, confusing language, and irrelevant amendments, it is obvious that our Constitution is hardly a good example of fundamental law. Fundamental law should, theoretically speaking, embody principles of good government, specifically liberty and equality. Further, it should create the process through which these abstract principles can be realized. The Alabama Constitution, however, seems only to be a code of positive law that is frequently revised. One scholar has argued that the "detailed 1901 document" limits the legislature: they cannot easily make necessary public policy, e.g. building roads without a constitutional amendment. Many of the clauses are confusing or archaic causing citizens to "become lost in the verbiage." Contradictory amendments lead to expensive debates either in the courtroom or elections.(1)

   It must be acknowledged that any attempt to create another constitution, or even amend the current one, invites the self-interested to manipulate the "supreme law of the state" for their own purposes. Even special interest groups that directly benefit from our current constitution, be they insurance industries, paper companies, or educators, argue that reform would only allow other interest groups to get involved and "win" in terms of promoting their own cause. However, the preservation of liberty, and the perpetuation of good government, demands the examination of constitutional government.

   One is reminded of Alexander Hamilton's belief that "it seems to have been reserved to the people of this country...to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force."(2)

   A current debate surrounding the 1901 document includes the issue of whether or not judges ought to be elected. Two dominant questions arise when considering this subject. Are Alabama citizens capable of choosing competent judges? And, Is it possible to take "partisan politics" out of the judiciary? Unfortunately, these questions are further complicated since the dramatic increase of judicial activism in the last four decades. State courts, following the U.S. Supreme Court, regularly involve themselves in policy disputes and, more frequently than the Supreme Court, create public policy. Issues such as state-funded abortions, discrimination, taxation policies, and obscenity are to a great degree now under judicial discretion.

   We must acknowledge the fact that judicial decisions are interpretive by nature, therefore judges do form public policy. Although there is a gray area between judicial activism and interpreting law, a fundamental difference between applying a law made by the legislature and creating policy can be understood. These facts lead to even greater confusion over the nature and role of the judiciary. It is necessary, in order to make sense of these issues, to consider the current guidelines regarding the judiciary as described by the 1901 Constitution.

   In 1973 the Alabama judicial branch was completely revised by Amendment 328. Prior to 1973 the judiciary was decentralized. Alabama court procedures differed widely from county to county. Pertaining solely to local civil issues, these courts were run by justices of the peace, many of whom were not lawyers. We now have a unified judicial system which consists of a [S]upreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district Court, a probate court and such municipal courts as may be provided by law."(3)

   Consequently, judicial procedure is now uniform throughout the state. Untrained Justices of the Peace can no longer arbitrarily rule "little fiefdoms." Amendment 328 declares that "The chief justice of the supreme court shall be the administrative head of the judicial system," thereby allowing the Alabama supreme court to supervise and control courts of inferior jurisdiction.

   Complaints of judicial misconduct or unethical behavior are investigated by a judicial inquiry commission, composed of seven members (two of whom shall not be lawyers). If a formal complaint is lodged by the commission, the court of the judiciary determines whether or not the judge in question shall be removed from the bench.

   The greatest cause of controversy arises over the clause that stipulates "All judges [excluding municipal judges, who are appointed] shall be elected by vote of the electors within the territorial jurisdiction of their respective courts."(4) Judges are reelected every six years. Alabama is not alone in its controversy of the means of selecting judges. A number of lawyers, academics, and citizens argue that the legislature or governor ought to pick judges, while others believe that judges should be democratically elected. The primary difficulty in resolving this issue is that judges by nature ought not be partisan. The American political tradition teaches that the purpose of the judicial branch is to apply the law to specific cases, not make public policy. Making policy, an inherently political activity, is best left to the people and their representatives.

   This problem is exacerbated by the limited ability of the electorate to decide who ought be selected. Obviously, the people are capable of determining who ought be governor based on his character and policy proposals. Yes, the people might say, we wish to elect a governor who will cut taxes or increase spending in education or whatever. But determining what judge is qualified is eminently more difficult than picking a representative or governor.

   A democratic populace cannot easily understand the specific types of law a judge is responsible for, or the significance of the candidate's academic or professional background. Discussing this problem at the public level is difficult because of its seemingly undemocratic aspects.

   On the other hand, a number of commentators argue that elected judges better represent the peoples's interests. If a governor or a committee are allowed to appoint judges partisanship naturally influences their choice. Governors, advocates of the electoral method argue, are animated by political interests, and not the common good. It is frequently heard "At least the people have a say in the matter when they elect judges."

   A glance at the U.S. Constitution will help us in understanding this particular dilemma. In more than 200 years federal and supreme court judges have never been elected. And, significantly, there is very little dispute over this process. The original proponents of the U.S. Constitution argued that judges must be knowledgeable in the many aspects of law. Hence the president nominates judges, who in turn are confirmed by the Senate. The means to remove "politics" from the judiciary is to remove the judiciary from the political realm.

   By allowing the executive officer, at the state level, in conjunction with the legislative branch (either one or both houses), to pick judicial members, the element of politics is actually reduced. Although the executive officer is by nature partisan, the nominated judge, once selected, becomes independent of the governor. The judge removes himself from the more politicized aspects of government. Hamilton, admitting that no judicial system is perfect, argues that when "assemblies of men" participate in the nomination of a candidate "we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly...(and) the intrinsic merit of the candidate will be too often out of sight."(5) The legislative branch is moderated because they can confirm the candidate, while the executive officer's actions, the sole person to nominate, are obvious to all concerned. This plan is good precisely because the alternatives--partisan elections--guarantee worse results.

   The nominating process, though on the surface undemocratic, preserves democracy because judges act as a barrier against the legislative branch when and if that branch attempts to thwart constitutional law. Simply put, judges represent the people and they do so by upholding the law.

   Admittedly, there are many differences between the U.S. Constitution and state constitutions. But constitutions are, or should be, fundamental law. Such law organizes the branches of government, authorizing those branches to do specific things and, most importantly, limit the power of the branches. Most of all, constitutions are "extraordinary" insofar as they do not set down specific public policy, or even articulate all the rights a people possess, but create the means or process by which policy may be fairly and reasonably determined.

   If a constitution becomes lengthy, convoluted, or confusing then it is difficult for the government and the people to understand how government ought to act. Such a constitution does not limit the legislature, executive, or even the people. Rather it only reflects topical political battles. It is helpful to reflect that the U.S. Constitution has only 27 amendments (since 1787) while the Alabama constitution has over 570 amendments (since 1901). As such it must be granted that the Alabama Constitution is merely positive and not fundamental law. Interest groups naturally learn how to work within the "system" but the people as a whole are incapable of clearly comprehending it.

   By what means, then, ought judges be selected? There are five popular methods in the United States: selection by the legislature; selection by the governor; partisan election; nonpartisan election (candidate's party affiliation is not listed on the ballot); and the merit system. The least preferred method of picking judges is via legislative election. The few states that use this method do so by majority vote in the legislature. Those picked are normally former legislators and such "a judgeship is viewed as a highly valued reward for public service and a prestigious cap to a legislative career."(6) Since the functions of the legislative branch are fundamentally different from the judicial branch, the primary complaint against this method of selection is that the candidates lack qualifications and are not accountable to the people.

   Gubernatorial appointments, although utilized by only a half dozen states, are common throughout the Union. In many instances popularly elected judges "resign" just prior to the end of their term, thereby allowing the governor to select a "temporary" replacement. In many states the new temporary judge is almost guaranteed reelection. The benefit of gubernatorial appointments is their independence from general political infighting. Once selected, a judge can act independently from the governor without fear of reprisal.

   Partisan and nonpartisan elections are very similar. The twenty or so states that allow for partisan and nonpartisan elections do so for democratic reasons: judges must be accountable to the people. After all, elections seem to be more democratic. But the "appearance" of democracy does not ensure democracy in part because even nonpartisan elections are partisan. The judicial candidate necessarily must appeal to specific interest groups, trial lawyers for example. Interest groups tend to greatly influence the outcome of elections. Nonpartisan elections merely gloss over the appearance of partisanship.

   The primary problem with judicial elections is that the majority of people do not understand the responsibilities of judges, therefore many voters make uninformed choices. Since voter turnout is so low, the greatest influence in judicial elections are the interest groups who do vote. An election, which does not truly represent the people, can hardly be called democratic.

   The National Municipal League has argued for decades that judicial elections are an anomaly in a democratic society. Democratic principles are not upheld in partisan or nonpartisan elections. They argue that

...[T]he attributes that make for good judicial qualifications and temperament are not appropriate subjects for meaningful public debate or for a considered vote of the electorate. The election of judges is thus commonly based on irrelevant considerations such as party label rather than on any considered judgement as to qualification for judicial office.(7)

   Ironically both partisan and nonpartisan candidates usually indicate their political affiliations either in official biographies or campaign speeches, making nonpartisan elections unlikely.

   The history of judicial campaign spending has greatly increased since the 1960s. More and more frequently, judicial elections take on the character of political elections. In California, for example, judicial election expenditures exceed more than $11 million dollars. Ultimately the recurrent complaint against electing judges is the low voter turnout and the necessity of candidates to raise hundreds of thousands of dollars for their campaigns. Normally interested parties, trial lawyers or corporations who are likely to be sued, give the most money. Obviously, accountability is easily questioned.

   It is not uncommon for trial lawyers to give large donations to judges up for re-election. These judges, in turn, rule over lawsuits that frequently result in large punitive damages. Not surprisingly, Alabama is known for its extremely high punitive awards, with the average amount $250,000. Supreme Court candidates frequently raise over $700,000 in campaign funds. Most of these campaign dollars come directly from the trial lawyers and businesses.

   As Thad L. Beyle points out, "With more hotly contested races, more single issue candidates, and more pressure on judges to present their views on sensitive political issues, judicial elections are beginning to mirror campaigns for federal office."(8) With so much money being spent, much of it by lawyers whose cases are heard by the judges up for election, the appearance of propriety diminishes.

   Elected judges, who are supposedly separate from the political realm, must campaign for their seat on the bench. Campaigns, by nature, are driven by policy issues and party loyalties, which are inherently political. A case in point is the protracted dispute over the November 1994 race between Democrat Sonny Hornsby and Republican Perry O. Hooper, Sr. for the Supreme Court. Although the dispute centers around unsigned absentee ballots, one can clearly see how politicized the judicial branch has become, with the ballot issue drawn between party lines.

   The most popular means of selecting judges since 1937 is the Missouri or merit plan.(9) At least 22 states have adopted, to a certain extent, this mode of selecting judges. The Missouri plan normally consists of a nominating commission composed of the chief justice, state bar representatives, and representatives appointed by the governor. After determining the best candidates the commission recommends candidates to the governor who in turn endorses one of the candidates. The judges are allowed to indefinitely retain their appointments as long as a majority of voters do not vote against him in the next scheduled "retention" election. Studies indicate that 99 percent of judges retain their position in retention elections.

   A common criticism of the merit plan is that women and minorities are not properly represented. This criticism, although quite relevant, is applicable to all methods of judicial selection. Most judges in the United States are white males. On the whole, a slightly higher percentage of women and minorities are placed on the bench because of the merit plan.(10)

   In 1966 an Alabama citizens' conference first recommended that the Missouri Plan be adopted.(11) The Legislature consciously chose to ignore the recommendation. The reason for this, it has been argued, is that

   Because the people with the largest stake in the status quo are trial lawyers who represent plaintiffs. In the four contests for Supreme Court seats this year...most of that money came from the trial bar, whose political friends have dominated the Supreme Court for the past several years.(12)

   Once again the same old problems arise. Low voter turnout is common throughout the United States. In extraordinary circumstances citizens take note of who is running for the bench and, on occasion, actually vote them out of office. But such instances are rare. One must assume that the citizenry as a whole is simply uninterested and, perhaps, uninformed about such contests. Also, partisan influence on the part of the governor and commissioners abound in the selection process. What does not occur, of course, is the "buying" of judges by interested parties.

   Perhaps it is in our interest to revise the Alabama Constitution to create a clearer "fundamental law" that does not need to be altered whenever Montgomery wishes to promote the cattle and catfish industries, or Baldwin county needs to raise money for hospitals, or when Jefferson county needs to cut its weeds. Thus far, the most promising alternative to partisan elections is the merit system. Judges, picked by a committee of lawyers, representatives of the governor, and laymen, will concentrate more on their immediate responsibilities--fairly judge cases--rather than appealing to the populace or interest groups.

   Changing our current method of selecting judges will not settle all the problems inherent today in the court system. But it is reasonable to assume that many of these difficulties--partisanship, unsigned ballots, the "buying" of judges--can be ameliorated so that all citizens may benefit.

Notes

1. David L. Martin, Alabama's State and Local Governments, (Dubuque, Iowa: Kendall/Hunt Publishing Co., 1975), pp. 32-33.

2. The Federalist Papers (New York: Bantam Books, 1982), Federalist 1, p. 2.

3. Alabama Constitution of 1901, Amendment 328, 6.01 (a).

4. Alabama Constitution of 1901, Amendment 328, 6.13.

5. Federalist 76, p. 385.

6. Ann O'M. Bowman and Richard C. Kearney, State and Local Government (Boston: Houghton Mifflin, 1990), p. 286.

7. National Municipal League, "Model State Constitution," (New York: National Municipal League, 1963), p. 79.

8. Thad L. Beyle, State Government: CQ's Guide to Current Issues and Activities, 1987-1988, (Washington, D.C.: Congressional Quarterly, Inc., 1987), p. 152.

9. Cf. Bowman & Kearney, pp. 291-2.

10. Cf. Bowman & Kearney, p. 293 and "The Road Best Taken" (editorial), Mobile Press Register, December 30, 1994, p. 8-A.

11. Cf. James D. Thomas and William H. Stewart, Alabama Government and Politics (Lincoln: University of Nebraska, 1988), pp. 112-116.

12. Editorial, "The Road Not Taken," Mobile Press Register, December 29, 1994, p. 12-A.