January 27th, 2012
The Gavel Grabbers – the social media arm for Justice at Stake and the $45 million George Soros-fed campaign to shape America’s courts to his uber-left political leanings – are wringing their hands over the “anti-court fever” stoked by Newt Gingrich. Gavel Grab quotes criticism by columnists who decry the “constitutional crisis” Gingrich is “promising,” along with warnings his proposals would turn America into a “banana republic.” Yet Justice at Stake and the entire Soros machine has itself been guilty of slamming court decisions with which it disagrees with as much fervor as Gingrich.
Justice at Stake’s Bert Brandenburg, for one, condemned the U.S. Supreme Court’s Citizens United decision as a “ruling that pours gasoline on an already raging bonfire” and, with no evidence whatsoever, predicted it “will pose an especially grave threat to the integrity of elected state courts.” The Democratic Senatorial Campaign Committee has launched a campaign to overturn Citizens United, with no apparent protest from Justice at Stake.
Let’s see now: Gingrich’s critique of America’s courts threaten a “constitutional crisis” … but Justice at Stake’s attack on the U.S. Supreme Court serves some noble public cause. How does that work exactly? The answer is simple: it’s all politics. When Justice at Stake’s ox is being gored, as in the Citizens United decision, incendiary rhetoric and demands the ruling be overturned are fair game. But if someone else questions the courts … well! How dare they turn America into a “banana republic”?!
All of which goes to show, as if further proof were needed, that the entire Justice at Stake enterprise is merely an effort to promote a certain political and ideological viewpoint in our courts. That’s certainly their right. But to suggest that they’re serving some broader public good is, to quote another Gingrich line, a bunch of self-righteous baloney.
Has “merit” selection become so discredited that its supporters won’t even utter the name? That seems to be the case in North Carolina, if Paul D. Carrington of the North Carolina Bar Association Committee for Judicial Independence is any guide.
In a Charlotte News and Observer oped last week, Carrington bemoans the U.S. Supreme Court’s decision to invalidate “matching fund” rules that shoveled taxpayer dollars to candidates in danger of “being outspent by rival candidates” who chose not to participate in public financing. Since, “alas, our good system is now dead,” Carrington and the North Carolina Bar Association are pushing a new plan that “assigns an important role to voters to approve or disapprove appointments of judges nominated by our governor on the advice of a diverse and disinterested panel.” Carrington applauds Governor Beverly Perdue for having “taken the first step in creating a sensible system” by establishing “a diverse committee to advise her on prospective appointments.”
Sure smells like “merit” selection to me, although Carrington doesn’t dare mention it. But just to be sure, I Googled “North Carolina judicial nominating commission” … and whaddya know! In addition to the usual assortment of Bar Association luminaries, it turns out this shiny new commission, which Carrington wants “firmly established to play an important role” in picking judges is chaired by Perdue’s “former general counsel” who just happens to be a “fellow of the American College of Trial Lawyers.” Another commission member is a Raleigh attorney who served as the “founding Chair” of the successor group to the North Carolina Academy of Trial Lawyers. Nope, nobody here but us “diverse and disinterested” committee members.
As an old political hand, the language of Carrington’s piece fascinated me. In place of a “merit” commission, we have a “diverse and disinterested panel;” instead of acknowledging that the committee would actually have the power to make nominations, we hear it would merely “play an important role” in the process; instead of dictating to Governor Perdue or a future governor, the commission merely “advise[s]” on “prospective appointments.” Of course, the whole proposal leads off with the assurance that it “assigns an important role to voters” – which is the first sign they’re about to get shafted.
Maybe I’m getting cynical, but I’ve been on the used car lot before and I know when a lemon is being gussied up so it can be pawned off on some unsuspecting customer, which in this case is North Carolina’s voters.
The left-wing American Prospect has a long profile on James Bopp, a tireless leader in the battle to overturn restrictions on free speech in elections, which typically masquerade as “campaign finance reform.” Bopp is best known for filing the suit that resulted in the landmark Citizens United decision, but he also played a key role in Republican Party of Minnesota v. White – the 2002 U.S. Supreme Court ruling that lifted prohibitions that barred judicial candidates from discussing … well, pretty much anything. While the article tars White and Bopp for “the escalation in money, TV ads, and vitriol in recent judgeship races,” Bopp makes the more compelling, common sense point that it is “quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values.”
Here, in a nutshell, you have the difference between proponents of “merit” selection and supporters of judicial democracy. The left-wing “merit” selection crowd believes judges should never deign to explain their reasoning to ordinary voters. Most voters are not sophisticated enough to understand the complexities of judicial reasoning anyway, so judges must be shielded from having their words or opinions become the stuff of “vitriol” or, heaven forbid, a TV ad. Those of us who believe in a more democratic judiciary trust that voters can weigh various sources of information about judicial candidates and separate out the important from the demagogic. We put our faith behind ordinary people in the voting booth, not legal elites who hide behind closed doors to decide who will rule us from the bench.
Although the profile is critical, you can’t help but notice a grudging respect for Bopp’s effectiveness at fighting for his beliefs.
Keep fighting for the people, James!
Discontent over judges and the system for choosing them continues to build in Missouri, the birthplace of “merit” selection. The latest flashpoint: A plan by six appeals court judges to gerrymander state congressional districts. Senator Kevin Engler points out that the boundaries of three districts are suspiciously contorted right around his house, with one cutting right across the home of a neighbor. “That house is in, that house is out. Who would do that,” Engler asks?
The more important question is why – but we’ll never know the answer. According to news reports, the “judicial panel deliberated in secret, insisting it wasn’t subject to the state Sunshine Law.” Such is the arrogance of judges chosen by “merit” – rather than by the people or their elected representatives.
Senator Brad Lager suggests the judges’ actions “definitely strengthened the argument and gave fuel to the initiative to bring reasonable reform” to “merit” selection scheme that has been completely captured by special interest groups like Missouri trial lawyers association. Among the changes being discussed: Adding more ordinary citizens to the nominating panels so elite lawyers won’t completely control the process. The Missouri Bar, needless to say, is fighting every reform proposal.
Senate President Pro Tem Rob Mayer has pledged to bring “more transparency and accountability” to the process. In the meantime, the actions of Missouri’s judges continue to confirm that “merit” selection has utterly failed to remove politics from the judiciary, while giving Missourians judges who believe they are above any oversight from the public they serve.
This seems to be the line Justice at Stake is peddling, calling judicial elections “an exercise in blindfolded democracy” and arguing that elections basically amount to “pulling names out of a hat.” The Birmingham News has dutifully picked up on the idea and proposes doing away with elections altogether and “have judges at all levels appointed in a fair process that considers qualifications and legal experience most of all.”
Two comments seem relevant here. First, as former Michigan Supreme Court Chief Justice Clifford Taylor has tirelessly pointed out, the idea that under “merit” selection, nominating commissioners sit around poring over law school transcripts in search of the judicial candidate who got an A+ in Contracts rather than an A- is grossly misleading at best and an outright falsehood at worst. Imagine a commission evaluating the qualifications of Antonin Scalia and Stephen Breyer. For all intents and purposes, their qualifications are identical. So when choosing between a Scalia and a Breyer, the decision for President Reagan and President Clinton came down not to qualifications, but to which judicial philosophy each felt best serves the Constitution. Judicial Nominating Commissions make their recommendations based on the same biases and preferences – only they are not accountable to anyone for their decisions.
The second point is that doing away with elections because a handful of elites believe ordinary citizens are not educated enough about their choices puts us on a very slippery, anti-democratic slope. Should we end voting for school board because we don’t think people really “understand” what it takes to run a school effectively? What does the average person know about the latest academic research on law enforcement – and how can they vote intelligently for their local sheriffs without it? Alabama had a long and undistinguished history of using “literacy tests” to make sure people were “qualified” before they were allowed to vote. Is that really a legacy the “merit” selection crowd wants to embrace?
In American democracy, the right to vote for our public servants is not a privilege granted to those deemed worthy by some editorial writer or some Bar Association honcho or some flak for a billionaire who wants to push our courts sharply to the left. And it’s not conditional on the reason we choose to vote for a certain candidate – or whether elites thinks it’s a good reason or a bad one.
The U.S. Chamber of Commerce plans a “major effort” on state Supreme Court and Attorneys General elections this fall – a welcome signal that America’s leading business group will be fully engaged on races that are critical to promoting tort reform and reining in activist judges and AGs. The news came in Chamber President Tom Donohue’s annual State of American Business address. The organization I run, the American Justice Partnership will also be active in key races, supporting Supreme Court and AG candidates who believe judges should interpret the law, not legislate from the bench. Together, AJP and the Chamber’s mutual efforts are making a difference in advancing the rule of law and ensuring judicial accountability.
Legal elites in Florida are up in arms! Governor Rick Scott is plotting “the biggest judicial power grab in Florida’s history”!
What exactly is Scott’s offense? Why, he’s threatening to “rejec[t] the time-honored and traditional input of the Florida Bar” when it comes to selecting members of the state’s Judicial Nominating Committee. The outrage!
Back in 1971, then-Governor Reubin Askew concocted a system that put legal elites in control of the judicial nominating process. Under his scheme, the governor chose three lawyers to sit on the nominating committee and the Florida Bar chose three members, with three non-lawyers added in for window dressing. The practical result, of course, was to raise the Bar to a position of privilege when it comes to picking judges.
Former Governor Jeb Bush weakened the power of legal special interests by claiming five appointments for himself, with the other four to come from a list submitted by the Bar. Now Scott wants the freedom to name all nine members, which would put the Bar where it belongs – on an equal footing with every other interest group in the state.
Can anyone imagine the Florida Chamber of Commerce claiming a “time-honored and traditional” privilege to dictate the direction of the courts by choosing who will sit on the bench? Or the Florida Medical Association? Or the Florida State Music Teachers Association for that matter. The Bar may be blind to its own arrogance – but Florida’s elected officials are not and they are waging a much-needed battle to reduce the power of unelected, unaccountable lawyers and restore it to representatives of the people.
The Knoxville News Sentinel has named “merit” selection critic Sen. Mike Bell one of its “five legislators to watch in 2012.” As the Chairman of the Senate Government Operations Committee, Sen. Bell “is in a new position this year to put more power behind his voice.” The committee has the “first shot at deciding whether various state boards and commissions will die or be given new life.” The state’s “merit” selection board – which is controlled by legal special interest groups – is due to sunset this year without favorable action by Sen. Bell’s committee.
Last week, Shira Goodman over at Pennsylvanians for Modern Courts – a charter member of the $45 million+ George Soros campaign to end democratic selection of judges – suggested that the ethical transgression of one Philadelphia Traffic Court judge represented an indictment of judicial elections. This has become a favorite meme of the “merit” selection crowd – but as recent judicial scandals in New Mexico and Missouri demonstrate, judges chosen under secret selection hardly have a monopoly on virtue.
To satisfy myself that I wasn’t being too hasty, I spent about 30 seconds on a Google search this weekend and came up with a few more examples of “merit” selection judges behaving badly. In Maryland, the award goes to Judge Richard Palumbo, who dismissed a protective order against a man who later doused his wife with gasoline and set her on fire. A few months earlier, when the wife appeared before Judge Palumbo and said she wanted an immediate divorce, Palumbo shot back, “I’d like to be 6-foot-5.” A state Senator later accused Judge Palumbo of having an “anti-victim, anti-woman attitude.” Obviously a judge chosen strictly by “merit.”
In Florida, Judge Paul Hawkes resigned last November over charges related to his role in constructing a new $50 million courthouse locals refer to as the “Taj Mahal.” According to news reports, Judge Hawkes “pushed for mahogany walls, granite countertops, and 60-inch television screens in every office.” Hawkes was accused of “destroying public records pertaining to the court’s budget” and browbeating a “furniture vendor” into “underwrit[ing] a trip for Hawkes and two relatives.” Since the Florida judicial nominating commission meets in secret, I guess we’ll never know what “merit” commissioners saw in Judge Hawkes.
I’m not claiming that all judges chosen under “merit” selection are ethically challenged. That would be Shira Goodman-style demagoguery. Instead, I think there are two conclusions any fair-minded observer could draw:
1) Judges are human and prone to the same temptations to abuse power faced by every public servant;
2) We need strong mechanisms to keep judges accountable.
The primary objective of democratic judicial elections is to provide that accountability; the primary objective of “merit” selection is to destroy it.
As I mentioned yesterday, New Mexico’s problems with cocaine-possessing, prostitute-cavorting, drunk driving judges would seem to suggest that judges chosen by “merit” selection do not have a monopoly on public virtue. A recent scandal in Missouri – the birthplace of “merit” selection – offers evidence that judges chosen under this system have not cornered the market on professional ethics either.
While vacationing in China last October, it seems Associate Court Judge Barbara T. Peebles delegated her judicial responsibility to courtroom clerks, who handled “at least 350 cases” and even issued “as many as 18 arrest warrants” under her forged signature. One clerk-gone-wild dismissed “five cases, involving kidnapping, unlawful use of a weapon, property damage, domestic violence and theft.” When not playing judge, these non-lawyer clerks are primarily responsible for “keep[ing] track of paperwork.”
St. Louis Circuit Court Presiding Judge Steven Ohmer blasted Judge Peebles for “an overall lack of management and supervision” and said he was “still shocked” at the quantity of cases dispensed by clerks. A local defense lawyer was less diplomatic: “I think it’s as illegal as hell.”
When confronted about these actions after returning from China, Judge Peebles “denied that her clerks had acted improperly.” Judge Ohmer decided against removing Judge Peebles from office. As the watchdog group Better Courts for Missouri put it, “essentially, the court is letting Peebles go without any punishment because her actions were so outrageous that they would require a punishment that hasn’t been used in three decades, and they hope that switching her to a new division will alleviate the problem.”
The important point here is that judges are only human, regardless of whether they were chosen through democratic elections or by secret committee under “merit” selection. Judges can be unprofessional, unethical and even corrupt, just like any other public servant. That’s why judicial independence needs to be balanced with strong accountability. Democratic elections provide that accountability; “merit” selection doesn’t.
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