March 11th, 2010
What do you do if you’re a Texas personal injury lawyer who forgets his $800 leather jacket at an airport when boarding a flight?
Well, since you’re a personal injury lawyer and owned an $800 coat, you could probably afford to buy a new one.
Or since you make your living bringing personal injury lawsuits you could…
- Threaten to sue the city where the airport is located;
- Threaten to sue the the concession where you think you left your jacket;
- And threaten to sue the airline!
That’s what William Ogletree, a Houston trial lawyer chose. The Ogletree case is just one more example of lack of personal responsibility that runs rampant these days. For more of the gory details read this article from the Southeast Texas Record.
Today’s Washington Times has kindly published an op-ed I authored, “Your Cheerios Prescription.” The FDA is cracking down on product label claims it considers misleading and has threatened to force some products to go through the agency’s drug-approval process.
Yesterday I responded to an item by the folks over at JudgesOnMerit (”Why Perception Matters“). A closer reading turns up a number of other claims in the post that are false or misleading. Here’s a quick debunking:
First, JudgesonMerit claims that under the plan the group supports, judges would be screened “by a non-partisan citizen panel representing the diverse spectrum of interests in the community.” Actually, under the plan the group supports, at least half of the panel members must be lawyers. So much for representing “the diverse spectrum of interests.”
Second, the group claims “the public … will have the ultimate say in retention elections.” Actually, retention elections do nothing to ensure public accountability, but only assure a lifetime appointment to the bench. Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were re-elected. Since “merit” selection was adopted in Tennessee, only one judge has ever lost a retention election.
Third, JudgesonMerit attempts to invoke the Founders, as if they would support “merit” selection. Actually, in Federalist 39, James Madison wrote that it is “essential” that a democratic government “be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” It seems pretty obvious that “merit” selection – where judges are chosen not by the great body of society (the people) but by an inconsiderable proportion of it (a small panel dominated by lawyers accountable to no one) is exactly the type of system the Founders wanted to avoid.
Last week I did a little post on the ABA’s striking admission that the whole “merit” selection campaign is based purely on “perception” – not any real evidence that elected judges are “for sale” as most “merit” selection proponents claim. Well, it seems to have struck a nerve!
Our friends over at JudgesOnMerit – the group trying to end democratic judicial elections in Pennsylvania – were out this morning with an item entitled, “Why Perception Matters.” After admitting that elected judges are “certainly not” corrupt and are “by and large fully qualified to serve,” the blogger makes a run at defining the “perception” problem. There’s a lot of throat-clearing, but the main point seems to be this:
“The greatest problem, however, has to do not with the outcomes in specific cases, but with the effect judicial campaigning and fundraising have on the public’s perception of justice. We pay respect and honor to judges when we address them; we clothe them in grave black robes; and we have them sit elevated from the rest of us, looking down in judgment. A simple traffic court judge is addressed as ‘Your Honor,’ while even the office of the President of the United States commands no such title. All of this, so that decisions handed down by the courts are respected – and that respect is so critical because the judiciary as an institution has no means to enforce its edicts. Indeed, for a court to have any power at all, the public must believe that justice, and not some perversion of it, is being meted out in its marble hallways, and that judges are impartial arbiters of disputes and interpreters of law rather than mere political actors.”
The implication here is that the “perception” – which the blogger admits is false – justifies doing away with a right as fundamental as voting. But if “perception” alone disqualifies a judicial selection system, what about the “perception” associated with “merit” selection?
Under “merit” selection, judges are chosen not in open, transparent elections involving all the people, but by a tiny handful of elites (mostly lawyers) who deliberate behind closed doors. Isn’t there a “perception” that this turns the courts into closed, lawyers-only clubs?
And what about public accountability? In contested democratic elections, the people can decide if a judge is too beholden to this or that group and dismiss that judge from public service. Under the retention elections “merit” selection supporters promote, more than 99% of judges are re-elected. Doesn’t that create the “perception” that retention elections are just a fig leaf designed to insulate judges from the people they serve?
If all these groups – the ABA, JudgesOnMerit, Justice at Stake – believe the only problem with judicial elections is a false public perception, then why are they spending so much money to inflame this perception rather than debunking it?
As readers of AmericanCourthouse know, George Soros has helped to bankroll Justice at Stake, the group dedicated to replacing judicial elections with so-called “merit” selection. Well, you might think that attempting to eliminate the democratic election of hundreds of judges in dozens of states would be enough to keep bazillionaire Soros busy. Well, what ordinary humans might call a full plate, Mr. Soros apparently considers to be an appetizer. Not satisfied with destroying democratic judicial elections, Soros is reportedly attempting to destroy major world currencies.
Voters in Maryland have twice blocked attempts to disenfranchise themselves when it comes to selecting judges. They have twice voted down proposals to end democratic judicial elections and adopt a “merit” selection system. But the “merit” selection crowd is pushing the rock up the hill once again – this time with the help of Attorney General (and future, would-be governor) Doug Gansler and former U.S. Supreme Court Justice Sandra Day O’Connor. (The Baltimore Sun has an excellent write up here and you can also read an op-ed of mine the Sun was kind enough to print here. )
“The independence of the judiciary is something we all ought to care about,” Justice O’Connor told a legislative panel in Annapolis, MD. It’s tempting to pass by this bromide with a thoughtful nod of the head, but there’s actually an interesting point here.
Everyone says they want judges to be “independent” – but independent from what? In my view, voters want judges who are independent from the influences of special interests – they want judges who will reach fair and impartial decisions. It’s up to voters in democratic elections to evaluate whether a judge has met this standard. “Merit” selection, however, delivers an entirely different kind of independence – namely judges who are “independent” from (and totally unaccountable to) the people they serve.
Baltimore attorney William H. “Billy” Murphy nailed this point, telling the Sun reporter that under “merit” selection voters…
“…have no idea what is going on behind closed doors. With the electoral system, you will know. If you don’t like it, and it stinks, you can do something.”
When America’s Founders wrote our Constitution, one of the primary goals was to protect the people from the government. “Merit” selection proponents want to turn that principle on its head by protecting the government (our public servants on the bench) from the people.
Last week I posted an item on Bill Moyers’ PBS rant about Citizens United, calling out the lack of any proof behind his hysterical assertion that there’s now a “crooked sign hanging on every courthouse in America reading ‘Justice for Sale.’” The Gavel Grabbers swooned, but also offered no proof to back up Moyers’ absurd assertion.
Well it seems I have an ally from an unlikely source: The American Bar Association.
In a letter posted on Gavel Grab yesterday, William Weisenberg, chairman of the ABA’s Standing Committee on Judicial Independence, writes that he “strongly disagree[s]” with Moyers’ statement and that he “view[s] this characterization of our Courts as impugning the integrity of our court system and the thousands of men and women who daily don their robes and administer justice in a fair and impartial manner.”
Picking apart Moyers was easy game for Weisenberg, but his next paragraph left me speechless:
“Our partners share the view, demonstrated in polling, that there is a serious ‘perception’ [his quotes] that financial support influences judicial decision-making. It is one thing to address the perception that you, JAS [Justice at Stake], our partners, and the ABA speak to often in our quest to drive money out of judicial selection. It is another thing to speak in terms of justice for sale as if it were a common thing.”
Now, you’re probably thinking … you lost your breath over THAT?
But what we have here is an admission from one of the High Priests of the movement that the whole gavel grabbing, multi-million dollar, “merit” selection campaign is based entirely on thin air – on a “perception” – not on any real, provable evidence that judges in mass numbers are selling their votes for cash. Justice in America is not “for sale” – it’s not even “at stake.”
Which raises two interesting questions:
- Wouldn’t it be better for Justice at Stake to spend George Soros’ hedge fund millions to dispel the false “perception” that justice is for sale?
- Will William Weisenberg write another letter to former U.S. Supreme Court Justice Sandra Day O’Connor rebutting her assertion that elected judges cannot “dispense law without prejudice?”
Carter Wood, once again, is on top of the latest legal reform news - this time with his ShopFloor hat on. Yesterday legislators in the South Carolina House overwhelmingly passed legal reform legislation in an effort to attract more business and capital investment to the state.
For more on the state of legal reform efforts in South Carolina, check out the South Carolina Civil Justice Coalition headed up by Cam Crawford. Cam and his team have been fighting the good fight in SC for some years now and aim to make the Palmetto State one of the nation’s top 25 states based on legal climate. Yesterday’s action by the state legislature is a step in that direction.
Carter Wood over at Point of Law posted a little gem yesterday. Wood reports that Richard Blumenthal, Connecticut’s long-time attorney general and now a candidate for governor, recently made the extraordinary claim that all those lawsuits he’s filed over the years “actually create jobs.” Well, knock me over with a feather.
For those interested in something closer to the actual truth, I refer you to a report that Pacific Research Institute’s Lawrence McQuillan authored. McQuillan’s study catalogs the devastating impact of excessive litigation on our economy - including thousands of lost jobs.
Ohio Chief Justice Thomas Moyer’s campaign to abolish democratic judicial elections has run into strong opposition from his colleagues on the state Supreme Court. In a Columbus Dispatch article, Justice Evelyn Lundberg Stratton said judicial elections are “open and transparent” and made the common sense observation that:
“… people are smart enough and there’s enough information out there for them to make those judgments about who should serve on the court.”
Justice Maureen O’Connor seconded the motion:
“No method for judicial selection is ideal and without problems. I believe that we should work with the elective system and concentrate on educating the public about the qualifications, records and philosophies of each candidate. The public can then decide who deserves their vote, trust and confidence.”
Justice Paul Pfeifer added that “merit” selection “is going nowhere” in Ohio.
In an era where judges routinely look down on the people they serve (see my post on Judge H. Lee Sarokin), it’s refreshing to hear from judges who understand that in a democracy the people are sovereign.
Read Older Posts»
