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Editorial: W.Va. needs to consider merit selection for judges

Feb. 09, 2008 @ 10:42 PM

Several members of the West Virginia Legislature say it's time to take partisan politics out of judicial elections.

They have a point. But why stop there? Why not take elections out of the judicial system entirely?

West Virginia is one of only seven states, including Ohio, to elect members of its highest court in a partisan election. That is, people running for the court must identify themselves as Democrats, Republicans, members of another party or independents. Thirteen states, including Kentucky, use nonpartisan elections. In four states, judges at most levels are appointed by the governor. The legislatures of two states appoint judges. In the remaining 24 states, judges are appointed through a merit system.

There are at least three bills pending in both the state Senate and the House of Delegates that would change West Virginia to a nonpartisan election of judges. They differ in a few details, such as whether the change would apply to Supreme Court races only or to circuit court elections, too.

It's easy to say that this is a result of the recent controversy surrounding Don Blankenship, chief executive officer of Massey Energy, but that's not the case. There has been talk of change for years. It's just that events of recent weeks have forced it to the front.

For those who came in late, Blankenship raised millions of dollars four years ago to get Republican Brent Benjamin elected to the Supreme Court. He had to do that to unseat incumbent Justice Warren McGraw, a member of a well-established Democratic family.

A few weeks ago, photos surfaced of Blankenship and Chief Justice Elliott "Spike" Maynard meeting on vacation in Europe. Maynard has since recused himself from participating in any cases involving Blankenship.

On the other side of the political aisle, Justice Larry Starcher has been an outspoken critic of Blankenship's participation in court elections.

Last week, Maynard recused himself from a third case involving Massey Energy. Benjamin and Starcher refuse to do what is right and recuse themselves.

State Sen. Evan Jenkins, D-Cabell, introduced one of the bills calling for nonpartisan judicial elections. That bill is now in a committee headed by an opponent of nonpartisan elections. Sen. Jeffrey Kessler, D-Marshall, favors publicly financed judicial elections, saying those could take special interest groups out of the picture.

Nonpartisan elections can go only so far in rooting out the perception that justice is for sale. Benjamin's election was likely the first of many expensive elections for the state Supreme Court. And really, even if the "D" or the "R" is not listed on the ballot, many if not most voters will know which candidate belongs to which party.

Even best-selling author John Grisham sees what's been happening in West Virginia. He wrote his latest novel, "The Appeal," around a corporate CEO who spends millions to get a Mississippi Supreme Court justice elected in order to overturn an unfavorable verdict. Grisham says he based his novel on events here.

So why just tinker with a system that already has been corrupted by big money? Why not go all the way and examine whether Supreme Court justices should be chosen by the governor, the Legislature or an independent body?

In other words, it's time to consider a merit system for selecting judges. Such a thought may be abhorrent to legislators who thrive in the world of big-money political elections, but a judiciary independent of elections is the best safeguard against the influence of that money, and the appearance of it.

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