Sortition vs. J.A.I.L.
(Comment by Brutus on "Elect or Appoint.")
From: Brutus
To: Cc: Jon Roland Sent: Monday, February 16, 2004 7:57 AM Subject: Re: Judges: To Elect, or to Appoint?

Ron, I would like to submit a third option for consideration: Sortition. I've pasted below a post from Jon Roland (of The Constitution Society) for your consideration.   Regards, Brutus      Both election and appointment of judges suffers from the same problem, corruption. Appointment makes judges dependent on those who appoint them.
Election on those who donate to get them elected, which for judges is mostly major law firms. We don't want either, and there is a third alternative: sortition.

What is sortition? It is the method we use, or are supposed to use, for selecting juries -- by a random process from a large pool of persons qualified to serve.

For judges, that pool of qualified persons would be narrower than everyone registered to vote, but it shouldn't be limited to members of the State Bar, because that gives the State Bar undue influence over judges. It should be based on some objective criterion, such as a score on a test. The random selection could go through multiple rounds, each of which would reduce the
number of qualified candidates by some objective or peer-approval elimination procedure. Finally! y, we would have a fairly large pool of qualified persons who would then be randomly selected to serve as judges for limited period of time, such as a year. Most benches would consist of multiple judges, so that judgment would depend less on the whims of a single individual.

If this were combined with returning to the early American practice of arguing all issues of law in the presence of the jury, both petit and grand, we might regain control of government.

For more on sortition for judges, see

-- Jon  
Brutus, here is how J.A.I.L. would cure the problem of which you speak. Since our Constitution establishes that no state shall grant any titles of nobility, i.e., limiting the process only to members of a unique club, the practice would have to be declared unconstitutional.   Once J.A.I.L. opens the pool to all who care to throw their hat in the ring, then the citizenry would also be qualified to serve on the bench. Let the "market" then determine who is the best suited and most qualified person for the judicial position.   Further, there will arise many vacancies on the bench once J.A.I.L. takes effect, for it will have gutted the "benefits" of corruption, and hence, the corrupt judges benefiting from it will either pack their bags, or be swept out.   -Ron wrote:
J.A.I.L. News Journal
Los Angeles, California                                    February 15, 2004
Judges: To Elect, or to Appoint?
Feb. 13, 2004, 12:20AM

Lying judge defends system

Copyright 2004 Houston Chronicle

Time was when a pronouncement by Steve Mansfield could make headlines and change lives.

That was when he sat on the Texas Court of Criminal Appeals, the state's highest court for criminal matters.

But this week, when Mansfield opined about gay marriage in Massachusetts in a letter to the editor of this newspaper, his remarks drew little attention.

And from many of those who recognized who he was, the letter provoked giggles.

The point of Mansfield's letter was that the 4-3 decision by the Massachusetts Supreme Court mandating the recognition of gay marriages constitutes a powerful argument in favor of the Texas system of electing judges.

"The main reason why Texas does not have a problem with activist judges acting like legislators in black robes is that Texas judges are accountable to the voters," Mansfield wrote. "In Massachusetts, judges are appointed for life and are thus free to rule however they see fit."

"Liberal activists know that the only way they can abolish the death penalty, remove religion from public life and impose gay marriage is through an unaccountable judiciary," he continued. "That is why Texans must not give up the right to elect our judges lest we become like Massachusetts."

Fallacies abound in his argument, but first let me explain why some giggled at his letter.

It is precisely this: Before he sank into obscurity after leaving the high court in 2000 and losing a bid to regain his seat in 2002, Mansfield was a poster boy for what is wrong with electing judges.

During Mansfield's campaign for office in 1994, he was caught in multiple lies:

He said his background was "primarily criminal defense," but in fact had done very little criminal defense work. His job when he decided to run was as an in-house insurance lawyer.

He said he was a Texas native. He was born in Massachusetts and moved to Houston in the 1980s and wasn't licensed to practice here until 1992.

He had paid a fine for unauthorized practice of law in Florida and was once charged with marijuana possession in Boston.

He said he had never run for public office. He had twice run for Congress in New England.

These and other embarrassing facts were published during the campaign. Yet while spending only $10,000, Mansfield beat a better-qualified Republican in the primary and then ousted the Democratic incumbent.

Mansfield himself expressed "shock, surprise and disbelief" at his victory.

He won for two reasons. One was that because the Court of Criminal Appeals handles only cases where no money awards are involved; plaintiff's lawyers and big business don't contribute to candidates. As a result, voters know little to nothing about candidates.

The second reason Mansfield won was that he rode George W. Bush's coattails in ousting Gov. Ann Richards.

So much for Mansfield's record. Now for his argument.

He says appointed judges are more likely to be "activist" in making law, rather than interpreting it.

But Texas has had its share of activist judges, both liberal and conservative. Judicial activism clearly can come not just from arrogance, but from a desire to pander to voters or major campaign contributors.

Mansfield also suggests that it is "liberal activists" who want to change the Texas system.

While some liberals have backed appointive systems, the leadership for appointing judges has come from Texas Supreme Court Chief Justice Tom Phillips and state Sen. Robert Duncan and state Rep. Elizabeth Ames Jones -- all Republicans.

Good arguments can be made for the elective system, but Mansfield didn't come close.

You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at

Whether to elect judges or to appoint judges is not relevant to the judicial problems facing America today. In either case, judges are not responsible for their actions whatsoever by reason of their self-created doctrine of judicial immunity. If elections assured honesty and integrity, then America should have the finest politicians that money could buy. (Pun intended.)
Lord Acton said, "Power tends to corrupt, and absolute power corrupts absolutely." Without accountability of judges, whether elected or appointed, we assure corrupt and activist judges will be running this country. Only J.A.I.L. assures a non-political system by which judges will be directly accountable to the people, and hence, America's future freedom and security directly rests upon the passage of J.A.I.L.

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