A Progressive on the Prairie

With the election a month away, the articles, panels and letters have started on Amendment A. While I don't think the "activist judges" argument flies in South Dakota, there's certainly arguments on both sides.

In the hopes of encouraging debate and discussion, I'm going to relate my views in two separate posts. A preface and disclaimer are in order, though. First, my conclusions were not reached lightly. I was on the Bar Commission when this idea was proposed two years ago and thought this would be a change for the worse. After studying and thinking about it, however, I came to the opposite conclusion. Second, the opinions expressed here are my own. I do not speak for or represent any other person or organization.

Currently, our circuit court (trial level) judges face a nonpolitical election every eight years. Amendment A would eliminate those elections. Instead, judges would be appointed by the governor from nominees selected by the Judicial Qualifications Commission. They would then be subject to a retention election on a nonpolitical ballot three years after appointment and every eight years thereafter by the voters in the circuit in which they sit. (Supreme Court justices are currently appointed and Amendment A would subject them to statewide retention elections every 8 years.) A retention election is simply a yes or no vote on whether a particular judge should keep his or her job. If he or she loses, the governor appoints a new judge.

Many are concerned that the public loses the right to vote or choose judges. While true on its face, reality may be somewhat different.

The public retains the right to vote, although it is in retention elections. If there are "activist" or "bad" judges, the public has the opportunity and power to "throw the rascal out." (This is in addition to the process established by the state constitution to remove a judge.) Moreover, it is relatively rare anyone runs against an incumbent judge. In fact, a study published recently in the South Dakota Law Review shows that since 1982 there have been so few contested judicial elections that South Dakotans have actually voted for less than 20 percent of their circuit court judges. (It doesn't appear the article is available on-line at this time other than through Lexis or Westlaw, which are subscription services.)

The drive for Amendment A came in large part from court decisions. For years, the Code of Judicial Conduct was used to maintain "decorum" in judicial elections by restricting what a sitting judge or candidate could say. In fact, one South Dakota attorney was suspended from the practice of law because of his actions during a 1992 circuit court campaign. The judicial code also prohibited judges from personally soliciting or accepting campaign contributions. Instead, any donations were solicited by and made to committees and the judicial candidate was not supposed to know who contributed.

In 2002, however, the US Supreme Court decided some of those restrictions violated the First Amendment. Other federal courts followed suit. Today, spending on judicial elections is at record levels. There is growing concern that judicial elections will stoop to the level of other political campaigns. (If you'd like to see a sampling, the Brennan Center for Justice has a collection of storyboards for this year's judicial campaign ads.) This, combined with judges being able to directly solicit and accept campaign donations, has raised concern that corporations or other organizations with war chests will "buy" a judgeship.

Although I think these arguments have some validity, money and advertising weren't deciding factors for me. It is always possible we may see nasty and expensive retention elections. What changed my mind was the conclusion that it is unlikely direct judicial elections produce the most qualified judges. That will be covered in Part II.
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Hopefully not totally overshadowed by the debate hoopla, the House Thursday failed to get the necessary two-thirds majority to pass a proposed federal constitutional amendment to ban gay marriage. Stephanie Herseth voted in favor of the amendment. This vote comes a day after she voted to repeal a law banning most handguns in the District of Columbia.

I am bemused by concerns about having three Democrats in South Dakota's congressional delegation. You wouldn't know it from her voting record so far.
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With a great deal going on in real life, I have not been keeping up with the conservative/rightwing bloggers recently. It was a mistake checking in on some of them today. I am dismayed by the persistent and intense hate, fear-mongering and intolerance. This dismay coincides with a couple interesting pieces on blogging.

First, this week's "Technologist" column by Steven Levy in Newsweek was on bloggers this week. The following excerpt reflects my thoughts over the last few months (even though I could be contributing to the syndrome):

Name-calling and intolerance of opposing points of view have reached epidemic levels on Web logs. And when it comes to hammering away on a noisy subject that ultimately distracts from more important issues, the Blogosphere can make cable television look like a 1950s debating society. Judging by its dominance in the blog world (I'm talking about the civic sector here, not the countless blogs on other topics or people's personal lives), you'd think that Rathergate was bigger than Watergate, Iraq and Britney's putative wedding combined.

***

I celebrate the liberating tools that let people post their thoughts unfiltered. But as with many other utopian predictions about how the open nature of the Net will create arenas that transcend foibles of the physical world, our faults have followed us to cyberspace. We were promised a society of philosophers. But the Blogosphere is looking more and more like a nation of ankle-biters.

And Billmon leaves the Whiskey Bar to comment in the LA Times on the state of blogging.

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I am not going to watch the big debate tonight. Hearing the s-o-s spew from the Liar-in-Chief would put our household televisions at too much risk. I figure I will get the fairest assessment and evaluation from the special live edition of The Daily Show following the debate.

Given the foreign policy focus, here's some quick thoughts in advance of the big event:

• Since Bush will undoubtedly continue his pattern of lying or ignorance about Iraq, see what the WSJ's Mideast correspondent, Farnaz Fassihi, really thinks and Christopher Dickey's assessment of freedom's future.
  
  
• No doubt some phony invocation of patriotism will occur in some form or another. Added to the "patriotism issue" in the Daschle-Thune race, How To Avoid Becoming Anti-American is a cute satirical piece. Spinsanity also notes the trend toward attacking dissenters.

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With the first installment of his autobiography on the way, Bob Dylan makes the cover of Newsweek, whose online site also has the interview and an excerpt.
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In light of the Bush administration's insistence there be no judicial or semi-judicial oversight regarding incarerations at Guantanamo, an argument that relies mostly on the phrase "trust us," I found this story interesting:

A prominent Taleban commander who was killed last week in southern Afghanistan had rejoined the militants after being released from the U.S prison in Guantanamo Bay, Cuba.

Certainly, the military cannot be perfect in assessing and evaluating these prisoners. At the same time, given how hard it has been for people to get hearings at Gitmo, let alone be released, ironic seems an understatement.

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Some of you may have read that last Friday a federal judge struck down a law banning the sale of bootlegs of live performances. I have plenty of bootlegs but the decision still leaves me with mixed feelings.

I don't have a problem with concert bootlegs because they provide an opportunity to hear what may be a very unique moment in time. My problem is with selling them. I have not paid a cent for any of the bootlegs I have, other than perhaps providing the CD to burn it on. There are a significant number of bands that allow taping of their concerts as long as it is done for personal use and trading. This includes such nationally known bands as O.A.R., the now-defunct Phish, the Dave Matthews Band and even John Mayer. O.A.R. is among those who even encourage downloading taped shows.

Generally, I would support anything that promotes quality concert taping. Still, anbody who seeks to make a profit off those tapes -- other than the artists themselves -- deserves no protection. They only provide reason for the artists now allowing taping to end the practice.

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The Argus Leader/KELO poll on the presidential race isn't too shocking. But it contained one item Democrats should find particularly disconcerting.

According to the specifics in today's Argus, when asked about Bush's "handling of homeland security and the war on terrorism," 41 percent of Democrats polled approved, 40 percent disapproved and 19 percent were "not sure."

Granted, the difference is well within the poll's margin of error. Still, it certainly does not bode well when Democrats are, at best, evenly split on a main theme of the Bush campaign. It also indicates a significant number of South Dakota Democrats have not grasped the concept of Accountablity.



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