We want judges who know the law and whose primary motive is the desire to do justice without fear or favor. We would like judges who are incorruptible, and to ensure that they are not corrupted in practice, we pay them salaries that exceed what all but the top echelon of lawyers make from the practice of law, for duties that give judges plenty of time for golfing, writing books, or watching Frozen XIV with their grandchildren. When judges enter their courtrooms, we stand up for them, we speak in their presence only when called upon, and even outside the court, their presence inspires fear and respect.
We might think that to get such judges, we would rely on the judgment of judges themselves. Most US states, however, elect judges by popular vote. And even where judges are appointed rather than elected, the final say on the appointment of judges is in the hands of politicians. In many US states, merit panels make formal recommendations to state governors, and in the US Federal System, the president and his advisors consult informally with sitting and retired judges before making the most senior appointments. Similar mixtures of merit and political selection, with the politicians having the last word, exist in every country regarded as a democracy except India and Israel. In India, politicians ignore judges (who are entirely self-appointed) when they feel they have to, and in Israel, judges in fact have final say over every supposedly political or legislative decision.
Judges are thus, in actual democracies other than India, either elected or appointed by the elected. Therefore, judges, by and large, reflect the various opinions of the voters who pick the politicians. They are, in democracies, widely respected, highly professional, and, on the whole, honest and decent. Some judges are liberal, some are conservative, and a small minority (like a small minority of the voters) are extremists, but hardly any are legal incompetents or personally corrupt.
Would that we tenured academics, supposedly also set apart for our peculiar work with lifetime appointments because of our primary concern with truth, were held in or deserved similar esteem. The academy is highly partisan: some departments, such as sociology, are overwhelmingly staffed by the leftist and supposedly progressive (though few of those actually believe that progress is possible and some claim that it has not occurred). Other departments, such as economics or engineering, are also mostly so inclined. The closer an academic field is to matters of public concern, the more likely it is to be plagued with groupthink, dubious methods, irreproducible results, and outright charlatanism.
What is to be done? As with judges, democracy provides a similar solution, at least for public universities. If even a few professor positions in key fields were political appointments, chosen by state governors after whatever degree of formal or informal consultation with current and former academics the governor or the laws of his or her state deemed prudent, those appointments would reflect to some degree the politics of the governors and of the voters who chose them. There is every reason to think that governors would choose well: they choose judges well enough, and life tenure and excellent working conditions mean that politically appointed judges follow their sense of the law and the facts and not the whims of those who chose them. So too, governors would choose governor’s professors responsibly—while these professors’ life tenure and the norms of academic freedom at public universities would ensure that their teaching and writing reflected their considered views and not the whims of the party.
Would such appointments be mocked and reviled by the current professoriate? Not for long, Oxford and Cambridge have their Regius Professors, appointed by the monarch on the binding advice of his or her democratically accountable prime minister, alongside faculty chosen and appointed without democratic “interference.” It is finally time for American public higher education to take not only the best of its campus architecture but also the best practices in academic hiring from its British model.