Insight

On Tuesday, 12 candidates will compete to fill two empty seats on an Alabama appeals court charged with hearing "appeals of felony and misdemeanor cases." From the June 3 primary (and possibly a July 15 runoff) will emerge four candidates — a Republican and a Democrat vying for each of the two seats on the state Court of Criminal Appeals.

According to Alabama Secretary of State Beth Chapman, turnout among the state's registered voters will likely be between 12 percent and 15 percent.

To put it differently, as many as 416,000 or as few as 330,000 Alabamians could chart the course of Alabama criminal justice as defined by the Court of Criminal Appeals.

That's the way of Alabama's partisan judicial elections.

On the campaign trail, judicial candidates are fenced in from several fronts. Unlike the state's Court of Civil Appeals and Supreme Court, Court of Criminal Appeals races don't attract the high-dollar contributions from plaintiff lawyers and corporate interests, the two entities with business inside a civil appellate court.

With little public interest and somewhat modest campaign war chests, the candidates can't afford tit-for-tat TV advertising.

Also, judicial candidates are bound by ethics laws that make it impossible for them to make anything like the traditional campaign promise.

So the candidates make the circuit, newspaper editorial boards, local political party clubs and local courthouses. If they are lower-court judges, they talk about running an efficient docket that doesn't let cases linger. Of course, quantity and efficiency say virtually nothing about quality.

Thus a few Alabama voters will go to the polls — first this week for the primary and later in November for the general election — to decide replacements for Court of Criminal Appeals Judges H.W. "Bucky" McMillan and Pam Baschab. Starting next year the base salary for a seat on this court will be $160,016.53.

Among the 12 hopefuls are lower-court judges or state prosecutors or private practice attorneys. Ask candidates the difference between a Republican judge and a Democratic judge and most are stumped for answer. After all, justice is justice. You either receive it or you don't. Political party labels say nothing about how a judge will act.

Press harder for an answer and the best you'll get is, It gives the voters something to identify with.

Maybe so, but if Secretary of State Chapman's prediction is correct for Tuesday's election is accurate then only a small fraction — perhaps 1-in-7 registered voters — will even bother to have their say on a court that hears approximately 2,000 criminal appeals annually.

How the court weighs those appeals goes a long way in defining the quality of Alabama's criminal justice. Did the accused receive a fair trial? Was his or her legal counsel adequate? Lives are literally in the balance.

Can justice this important be left to an apathetic electorate that in most cases is influenced by a party label that may or may not have any bearing on whether a candidate has the intelligence, reasoning powers, legal savvy and even temper required of a quality judge?

It's a hard question, one that shakes the tree of Jacksonian populism that inspired judicial elections in the first place. On that count, Alabama is not alone; a majority of states elect some judges.

While widespread the practice has its critics. One prominent foe is former U.S. Supreme Court Justice Sandra Day O'Connor. "No other nation in the world does that," The New York Times quotes her as saying recently, "because they realize you're not going to get fair and impartial judges that way."

Fair and impartial is important, right? So too is the appearance of fair and appearance, and that's where elections where judicial candidates line up as either Democrats or Republicans is problematic.

The situation is worse in races where big dollars are contributed to statewide judicial candidates. Recall that ethics is concerned with the [beg ital]appearance[end ital] of impropriety, not merely its existence. Judges taking campaign contributions from parties with a stake in appellate court outcomes looks bad. No way around it.

The state needs to begin a conversation about how it puts judges on the bench. Other states have retained the peoples' right to vote while installing safeguards that protect judicial independence. Here are some suggestions:

1. Lose the partisanship. Don't allow judicial candidates to run under the banner of a political party. That's how most municipal elections are run. There's no Democratic vs. Republican way to fix a pothole, so city hall hopefuls run without an "R" or a "D" beside their name. Might voters discern party membership nonetheless? Likely so, but the ballot would be free of a label that is generally useless when it comes to picking judges. The Alabama Bar has looked favorably at such a system.

2. Allow retention elections. Some states allow governors to appoint judges from a qualified pool of candidates. These appointments are subject to approval of the state Senate. Voters get their say at the end of a judge's term. The judge's name would appear on the ballot; voters could decide to retain or dismiss the judge. If the judge is voted out, the governor starts the whole process over.

3. Better regulate campaign cash. In 2006, the campaign for state Supreme Court went through more than $7 million. Already the state's judicial ethics code strongly discourages judgeship candidates from personally appealing for campaign funds. Some states have offered candidates the option of public financing. Those candidates receive a modest sum compiled from voluntary donations; in turn they promise to forgo private contributions that have the ability to taint judicial independence.

Official Montgomery is currently working on business it should have completed during the regular session of the Legislature. However, when the state's education budget for the upcoming school year is finished, lawmakers and the governor should turn their attention to judicial elections. The goal is not to take politics completely out of the process, an impossible task. Instead, the state should look to cleaning up how it puts qualified men and women on the bench without the worst of politics leaving an ugly bruise on our courts.