Who Should Judge the Judges?

That age-old debate got a fresh hearing in Georgia.
by | November 2016
(Shutterstock)

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

Who should judge the judges? That age-old debate has just had a fresh hearing in Georgia.

On Tuesday, voters agreed to change the way the state judicial qualifications commission is set up via a proposed constitutional amendment. The independent agency is tasked with going after judges for unethical behavior. Over the past decade, more than five dozen judges have been removed or stepped down in the face of an agency investigation.

One of those judges is now a sitting legislator. State Rep. Johnnie Caldwell resigned as a superior court judge in 2010 amidst sexual harassment allegations. He also co-sponsored the legislation that put the question of the makeup of the judicial commission before voters. Caldwell has said this has nothing to do with his own history with the commission, which he maintains is all in the past.

Instead, along with his co-sponsors, Caldwell cites the commission's treatment of former Superior Court Judge Cynthia Becker. She was indicted last year for lying to the commission, but the case was so weak that it was thrown out just days later, with a judge scolding the prosecutor for bringing charges.

"They sit as a completely autonomous group under the Georgia Constitution, so they're really answerable to no one," says Wendell Willard, who chairs the state House Judiciary Committee.

Up until now, commissioners have been selected by the state bar, the Supreme Court and the governor. With the measure's passage, the legislature will get to pick a majority of the commissioners. Supporters of the current commission say the new system will have the effect of eroding the agency's independence by making its members answerable to the political class.

Even if there are legitimate questions about how the commission has treated certain cases, that's not a good reason to change its structure and give the legislature effective control over it, Billy Corriher, an expert on state courts at the progressive Center for American Progress in Washington, D.C., said prior to Tuesday's vote. "It's important to have independent watchdogs in states where they elect judges," he says. "The commission they have in Georgia, as currently constituted, seems to have worked pretty well."

But Willard and others argued that commissioners have acted as investigators going after judges, and have then served -- in effect -- as the judges and juries in the same cases.

"One of the concerns we've raised is the due process issue," says Willard. "There is no way to really modify the makeup of the commission," short of a constitutional amendment -- which the state now has.

*This story has been updated from the version that appears in the October 2016 print issue of the magazine.