Just How Dumb Is Electing Judges? Roy Moore Isn't Even The Worst Of It.

The "Ten Commandments Judge" is back in the news, providing an object lesson in why electing judges is a terrible idea.

By Nathan Pippenger

Remember Roy Moore? He’s the Alabama jurist who was sacked in 2003 during a controversy over a giant stone monument of the Ten Commandments that he stuck in the rotunda of the state’s judicial building. After defying a federal judge’s order to remove the monument (and sparking national controversy), a state panel unanimously voted to remove Moore from his post. (This was widely considered to be a career setback.) But you can’t keep a good man down, and in 2012, Moore was reelected to his old job as Chief Justice. And don’t worry—he’s still got it:

In comments earlier this year only now coming to light, the chief justice of the Alabama Supreme Court asserted that the First Amendment only applies to Christianity since neither Buddha nor Mohammed created man.

That’s the report from TPM, which includes video (courtesy of Raw Story) of Moore’s remarks at a pro-life luncheon in January. “Everybody,” Moore told the approving crowd, “to include the United States Supreme Court, has been deceived as to one little word in the First Amendment called ‘religion.’ They can’t define it.” He went on to explain what the Founders meant by religion: “When Mason, Madison, and even the United States Supreme Court define it, [they mean] ‘the duties we owe to the Creator and the manner of discharging it.’ They [today’s judges] don’t want to do that, because that acknowledges the Creator God. Buddha didn’t create us. Mohammed didn’t create us. It’s the God of the Holy Scriptures.”

It’s easy to see how reporters jumped from these rambling remarks to the conclusion that Moore doesn’t believe in First Amendment protections for Buddhists and Muslims. (Ignore, for the moment, the fact that Muslims not only don’t worship Mohammed as a deity; it’s actually an essential tenet of the faith that he’s a prophet.) If the Founders thought religion was defined by duties to a Creator, and certain religions don’t have creators, then they’re not included in the definition of “religion” that receives First Amendment protections. Given these bizarre premises, Moore’s conclusion follows simply enough.

Or maybe not: Moore walked back his remarks this week, now insisting that he wasn’t talking about the law, and that the First Amendment “applies to the rights God gave us to be free in our modes of thinking, and as far as religious liberty to all people, regardless of what they believe.”

It doesn’t seem like there’s any use in searching for intellectual consistency here. Let’s ask a broader question: Why is a high-ranking judicial figure giving what amounts to a tent revival speech? To quote Neil Young: “Alabama, you’ve got the rest of the Union to help you along. What’s going wrong?”

To be fair, the root problem might go beyond Alabama. I nominate our insane system of state judicial elections, which incentivizes this kind of behavior. To watch Moore’s speech, you’d hardly know he was supposed to be an impartial public figure. Even his official website proudly refers to his crusade for the Ten Commandments monument, which was intended “to acknowledge the sovereignty of God” in the rotunda of the Alabama judicial building.

That’s not even the worst of it. Moore’s special brand of partiality is obvious and absurd, and it draws plenty of scornful media coverage. But elected judges, a 2013 study by the American Constitution Society found, are far more susceptible to a form of partiality that is not quite so headline-grabbing: pro-business rulings. Money is flowing into judicial races as never before (thanks in part to Citizens United), and the ACS study found “a significant relationship between business group contributions to state supreme court justices and the voting
of those justices in cases involving business matters.” Business, in other words, is buying votes, and the practice is booming. Just this morning, the New York Times reported on a North Carolina Supreme Court race where outside money is pouring in and saturating the local TV market with attack ads. This huge flow of money isn’t tied to any of the candidates: One group that received almost a million dollars in April “has a mailbox in a U.P.S. store listed for a headquarters and seems to be little more than a funnel for outside money.”

This is no way to run a judicial system. Separating state judicial appointments from electoral politics will not remove every Roy Moore from office, and it won’t put a halt to decisions that are unfairly biased towards business. But it could cut down on the worst kinds of electioneering and shameless pandering—the practices that abandon even the pretense of judicial impartiality, whether on the side of the Almighty or the almighty dollar.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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