February 8th, 2010
A Madison, Wisconsin Capital Times editorial zings their brethren at the State Journal for its “misguided crusade” for an “unelected judiciary.” The whole thing is must reading, but a few points stand out. Among them:
“There is no evidence of significant support on the part of citizens or their elected representatives for the idea of creating a so-called ‘merit selection’ system, which would give political and legal elites the power to pick judges …”
This is an absolutely critical insight. The entire “merit” selection movement is not a grassroots uprising, but a manufactured campaign financed by the George Soros Institute for an Unaccountable Judiciary (aka Justice at Stake). The game plan is by now depressingly familiar: Commission a poll that suggests people are concerned about the influence of campaign contributions in judicial races. Then make the preposterous leap to the conclusion that elites, not ordinary people, ought to have the power to pick judges. And hope no one notices.
Of course, people are concerned about the influence of campaign cash on every elected office – from dog-catcher to president. Channeling progressive patron saint Robert La Follette, the Capital Times writes “the cure for what ails democracy is more democracy.”
That’s just another way of saying … when lawyers choose, the people lose.
In a disappointing and tortured decision, the Illinois Supreme Court threw out limits on noneconomic damages in medical liability cases yesterday, overturning bipartisan legislation passed in 2005 that enjoyed broad public support. Ed Murnane, President of the Illinois Civil Justice League, blasted the court for “siding once again with the trial lawyers” over patients and doctors.
According to American Medical Association President James Rohack (who is quoted in today’s Chicago Tribune), when the Illinois Supreme Court overruled the state’s previous damage cap in 1997:
“Severe problems with patient access to care emerged as the unrestrained excesses of the state’s legal system forced Illinois physicians to limit services, retire early, or move to other states where liability premiums are more stable. Without a cap on noneconomic damages from 1997 to 2005, Chicago physicians saw their liability premiums increase an average of 10 to 12 percent each year. When the cap was reinstated in 2005, premiums for Chicago physicians stabilized and even began to shrink.”
This is the third time the Illinois high court has struck down medical liability limits, demonstrating that it “simply will not be bound by the duly enacted acts of the legislature when certain issues important to its lawyer constituency are at stake,” writes Walter Olson in a post at PointofLaw.com that picks apart the court’s legal analysis.
The Illinois court’s “lawless” decision (Olson) demonstrates beyond any doubt that the best tort reform is getting the right judges on the bench.
As I reported earlier, California Governor Arnold Schwarzenegger has pledged to push for tort reform in this, his final year in the governor’s office.
Veteran California political columnist Dan Walters gives a brief history of the tort wars in the Golden State and reports on the reform package’s chances for success - not great. In Walters words,
Don’t hold your breath. The Legislature’s Democratic majority is symbiotically welded to the trial bar.
“The public wants cash out of the courtroom – and that could mean pushing out elections, too.” So concludes an article in the Texas Tribune, citing as evidence a poll conducted by Justice at Stake which found that 84% of Americans believe judges should not hear cases from major contributors and 74% believe campaign contributions have some impact on a judge’s decisions.
But the leap the Texas Tribune makes from these manufactured survey findings to the conclusion that Texas should abolish democratic judicial elections is a clanking non sequitur.
A 2008 poll by the American Justice Partnership Foundation found that 75% of Americans believe state Supreme Court judges should be elected and only 21% supported so-called “merit” selection. Even a poll released by the staunches of “merit” selection supporters – the American Bar Association – found that only 19% of Americans wanted to turn judicial selection over to “merit” boards.
In that same article, the Texas Tribune publishes contributions by employees at top law firms between 2000 and 2009. Over that time period, 1,103 individual contributions were made at an average of $304. Even Texas Supreme Court Chief Justice Wallace Jefferson – a staunch “merit’ selection supporter – had to admit that “most judges don’t sit down at night and go over the list as to who contributed and who has not contributed to their campaign.”
The real problem, then, isn’t the fact that judges are changing their votes to please contributors, because Chief Justice Jefferson agrees they aren’t – at least not for $304. Instead, all we’re really dealing with is a problem of “public perception.”
If the public is wrong in their perception – as Justice Jefferson seems to believe – then isn’t the answer to better educate the public about the virtues of its judges, rather than punishing the public by eliminating their role in judicial selection altogether?
On Friday, the Baltimore Sun published an oped I wrote in response to a recent proposal by Maryland Attorney General Doug Gansler. Gansler is pushing to replace the democratic election of circuit court judges in Maryland with merit selection and retention elections.
Gansler argues his plan “offers [voters] a tool to hold the judge accountable.” But as American Courthouse readers know, such a scheme merely puts legal elites in charge of picking judges and assures a virtual lifetime appointment to the bench.
The same law.com article I posted on below also reported that the Conference of Chief Justices will meet this week. High on the agenda: new recusal standards for judges, which Justice at Stake’s Bert Brandenberg correctly called “a battle for the soul of the judiciary.”
As I’ve written before, recusal standards have become another vehicle for the trial bar and anti-business groups to try to marginalize conservative judges and remove them from cases.
Law.com has an interesting round-up from last week’s Georgetown University Law Center’s conference on judicial elections. Georgetown is a major recipient of George Soros $$ ($4.3 million between 1999 and 2006 to prop up Justice at Stake). So it was no surprise the conference highlighted the usual boilerplate about why it’s a threat to democracy to allow people to vote in judicial elections – especially after Citizens United.
But the conference also squeezed in Washington election lawyer Jan Baran, who countered the hysteria with some actual, real-live facts. According to Baran:
“26 states already have no limits on corporate spending in state campaigns – and their elections are not that different from those that restrict corporate participation.”
Baran also wrote in a New York Times op-ed:
“There is no factual basis to predict that there will be a ‘stampede’ of additional spending.”
That won’t sit well with the “merit” selection crowd, which is trying to use Citizens United to pressure states into abandoning democratic judicial elections. But it should be a flashing red light to state legislatures that might consider revoking the right to vote for judges in their states.
Opponents of democratic judicial elections held a confab earlier this week at Georgetown Law School featuring – surprise, surprise – former U.S. Supreme Court Justice Sandra Day O’Connor, who has become something of an Empress Dowager to the “merit” selection crowd, popping up to speak from time to time, always earning low bows from the assembled courtiers. (Gavel Grab reported on the event here.)
Justice O’Connor had little new to add to the debate, other than that after the Citizens United ruling now we’ve really, really got to stop people from voting for judges. To me, by far the most interesting statement came from Bert Brandenberg, head of the George Soros Center for a Non-Democratic Judiciary (otherwise known as Justice at Stake), when he raised the issue of judicial recusal standards:
“Recusal is a battle for the soul of the judiciary 20-30 years from now.”
I realize this may not be an aha! moment for everyone, but it confirmed what I’ve been saying for weeks, which is that recusal standards have become a back door way for liberals to try to marginalize conservative judges and shape the composition of our courts, at least in certain cases.
Yesterday’s New York Times business section featured on article on global warming litigation. The reporter cites a 2008 report published by the American Justice Partnership - the organization I head up - and the Southeastern Legal Foundation entitled, The Most Dangerous Litigation in America.
It appears that business is finally waking up to the threat these suits possess. Here’s an excerpt from the article:
“…In the context of climate change, such cases were once derided as frivolous long shots that would be shot down quickly. Scott H. Segal, a lawyer for energy companies, joked in a 2004 article in Grist magazine that the cases brought “new meaning to the term ‘nuisance lawsuit.’
“No one is laughing now. In a report issued last year, Swiss Re, an insurance giant, compared the suits to those that led dozens of companies in asbestos industries to file for bankruptcy, and predicted that ‘climate change-related liability will develop more quickly than asbestos-related claims.’”
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
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