We may have been too hasty in our Sept. 12 editorial endorsing Amendment A, which replaces direct election of circuit court judges with a selection and retention process. We based our decision on a recent U.S. Supreme Court decision that struck down Minnesota's canon of ethics for judicial elections (Minnesota vs. White). We reasoned that the ruling could turn South Dakota's nonpartisan judicial elections into circuses and allow graft through special-interest contributions.
But the constitution shouldn't be amended frequently or lightly, and after further reflection - and listening to opposing viewpoints - we recognized that our reasoning was based on the flawed assumption that South Dakota's nonpartisan judicial elections could become contests frequented by partisan mudslinging.
Maybe they will, but probably they won't. And if judicial elections do degenerate into mudslinging circuses, and where candidates promise to make decisions in specific kinds of cases, South Dakotans quickly would become fed up with it and demand the kind of reform contained in Amendment A. But we shouldn't change the constitution based on what might happen.
Under Amendment A, elections would be replaced with a selection process that goes through the Judicial Qualifications Commission, which would forward candidates to the governor, who would appoint one. After three years, the judge would face a retention election, where voters would vote on whether to allow a judge to keep the position, and again every eight years, as Supreme Court justices are now.
Three-quarters of the state's 38 current circuit court judges got their jobs through selection by the commission and appointment by the governor. Amendment A would mean that every judge would be reviewed by the commission and picked by the governor. What happens to qualified candidates who aren't favored by the commission and governor? The amendment concentrates even more power with the governor, which may not be beneficial.
Amendment A removes direct election of judges by the people, which has been in place since 1921. That's something that shouldn't be done without a very good reason. Elections force corrupt or incompetent judges to defend their record from a direct challenge, something that probably would not take place in a retention election, and which would require voters to educate themselves about a judge's record. How many voters would go to the trouble of researching a judge's record to decide whether to keep him on the bench for another eight years?
Amendment A is a solution to a problem that does not exist in South Dakota. We shouldn't change the constitution to prevent something that hasn't yet taken place. We recommend that voters reject Amendment A.
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