"The powers of the Government of the State of Nevada shall be divided into three separate departments, -- the Legislative, -- the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others."
-- Nevada Constitution
It is high time for Nevada, say a number of self-appointed political sages far wiser than you and me, to scrap this 143-year-old failed experiment in checks and balances and have the head of the executive branch, the governor, simply appoint the purveyors of the judicial branch, judges, rather than have them elected.
That would remedy the unseemly and decorum-demeaning necessity of judges having to campaign for office like ordinary ruffians, groveling for campaign donations and subjected to those oh-so distressing questions about their vaunted integrity when a donor appears in the courtroom.
You see, we voters are simply not capable of recognizing real hanky panky and voting the bums out. And the press certainly is not capable of stumbling upon said hanky panky and reporting it. Therefore, the system is subject to that most horrific of conditions -- no, not corruption -- the perception, even if totally imaginary, that judges just might be doling out favors to friends and financial backers.
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"Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."
-- Montesquieu
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The Nevada Supreme Court's Article 6 Commission is again trotting out a proposal for Nevada to adopt a modified Missouri plan, one in which the governor would appoint judges who then would periodically face the voters in an up-or-down retention election. Pay no attention to the fact the voters have twice before rejected similar schemes.
This time the proponents are wildly waving a dog-eared copy of an L.A. Times series of articles called "Juice vs. Justice" that pieced together a bunch of anecdotes showing potential conflicts of interest and opportunities for favoritism. Never mind that the series read like an editorial warning Southern California businesses about the dangers of moving to Nevada and getting fleeced by the yokels, or that 80 percent of those anecdotes had already been reported by the Review-Journal over the past 15 years. It was another excuse to drag out the appointed-judges plan, even though actual wrongdoing by anyone was never proved.
Sure, voters occasionally get hoodwinked -- take the recently imprisoned county commissioners as Exhibit A. What makes a system combining the powers of two branches of government any better? In fact, a strong argument can be made that it is far worse. One, by concentrating too much power in too few hands. Two, by creating a good ol' boy system for grooming insiders who never dare to buck the powers that be for the sake of the mere citizenry.
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"If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. ... Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well the maker of the laws."
-- James Madison
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It is difficult to fathom how being appointed by one politician is better than by a majority of voters, even if persuading all those voters requires a judge to raise money to get his message out. How does appointing judges assure a greater level of integrity? It is not like governors have never been jailed for corruption -- a half-dozen or so since Maryland Gov. Spiro Agnew come readily to mind, from Louisiana to Arizona, from Illinois to Alabama and Ohio.
But wiser folks than us assure that this is the way to go, and it is hard to find authoritative voices to counter them.
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"All the powers of government, legislative, executive, and judiciary, result to the legislative body (in the Virginia Constitution of 1776). The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one."
-- Thomas Jefferson
Thomas Mitchell is editor of the Las Vegas Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@ reviewjournal.com.
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