Columnist Jon Ralston: Get high court justices off campaign trail

No one who has watched judicial elections in Nevada for any length of time, especially those for the Supreme Court, can conclude anything other than that they are either a joke or an obscenity.

Or how about this description: "nasty, epithet-laden contests beneath the dignity of the courts or ... characterized by a lack of challengers, high rates of re-election and low levels of voter interest."

Those unerring words come from an essay recently published in the Nevada Historical Society Quarterly by UNLV Professor Michael Bowers, author of the definitive state historical book, "The Sagebrush State."

In the essay, titled "Judicial Selection in Nevada: A Modest Proposal for Reform," Bowers has a solution to the problem he so well articulates, one that at first glance seems as satirical as the original modest proposal offered by Jonathan Swift in 1729. Swift mordantly suggested that the solution to Ireland's poverty was for the adults to eat the swarms of children cluttering the countryside.

Bowers, who has previously argued for merit selection of judges as opposed to elections, is not quite so dramatic. But his idea is provocative, if not an unfortunate surrender to the proposition that a selection process will never be adopted in Nevada.

Bowers proposes that instead of six-year, staggered terms, Nevada high court jurists be elected to staggered, 14-year terms. Unlike Swift, Bowers is not joking. In fact, he asserts in the piece, "The advantages to this system are numerous while its disadvantages are minimal."

Bowers, in this essay and previously, has identified the problems with electing judges: Most of their money comes from lawyers and gamers, thus regularly creating the appearance of conflicts. Bowers and others have argued that in a selection system politics would exist but be reduced, and more women and minorities would become judges.

But he has given up on the idea, which has failed on the Nevada ballot twice before. With editorial opposition to the plan and voter apathy, Bowers sees no reason to believe that changes will occur.

So, his argument goes, if we have to have these noxious campaigns, let's have them less often. He sees three major advantages to his modestly named modest proposal -- a reduced need for campaign contributions, better voter information and attention and a longer judicial record on which to judge the judge.

Bowers also correctly anticipates the major criticism of a plan: Judges would become less accountable. But he says the accountability complaint is vitiated because the justices still eventually will have to face voters and actually could be removed early for malfeasance. And, as he points out, the idea that Nevada judicial elections now provide accountability is a fantasy. Bowers writes that "incumbent judges and justices in Nevada seldom even draw an opponent and are rarely defeated at election time in those few instances when they are challenged."

Bowers clearly feels that the good outweighs the bad because his idea will "reduce the number of occasions in which candidates run negative campaigns, trap the well of campaign contributions, and skirt issues of conflict of interest."

Maybe so, and the idea surely deserves public debate. But although it is those cloistered in the ivory towers of academe who often are accused of living in an unreal world, Bowers is much more practical than I. It still seems to me, Bowers' understandable cynicism notwithstanding, that the white flag should not be run up just yet.

A recent conversation with a lawyer is illustrative. He told me that a statute, passed by politicians pandering to the electorate on a volatile issue, was clearly unconstitutional. And, if judges were not elected in Nevada, he posited, it surely would be thrown out. Instead, no judge will risk the voters' wrath, he argued.

I'm sure he's right. Now if only I could come up with my own modest proposal ...

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