The Insufferable Arrogance of the “Merit” Selection Crowd

September 11th, 2014

Pennsylvanians for Modern Courts (PMC)– part of the George Soros-financed cabal pushing “merit” selection – recently “celebrated” its 25th anniversary, “celebration” being a fancy way of saying the group has failed for 25 years to build enough public support for its undemocratic method of selecting judges to get any bill or constitutional amendment anywhere close to passage.  So why has the group been so singularly ineffective, despite spending millions trying to end judicial elections?  One possible answer is the insufferable arrogance of the “merit” selection crowd, who just can’t seem to help themselves from denigrating the wisdom and capacity of ordinary citizens to make reasonable decisions about who should sit on the bench.

One spokesman for the cause recently lamented that Pennsylvanians often elect judges for “arbitrary reasons – whether it is because of their last names, party affiliations, connections to the right people, or the resources in their campaign coffers.”  Unenlightened citizens often elect judges who are “unqualified or under-qualified” because “all too often voters lack the information to ask the right questions.  How much experience does a judicial candidate have?  What are their stances on important issues,” etc., etc.

Perhaps PMC missed the press release, but there’s this great new invention called the Internet that puts answers to the “right questions” within easy reach of voters.  But come to think of it, who appointed special interest groups like PMC to decide what the “right questions” are in the first place?  Who’s to say that “party affiliation” isn’t more important than “experience” or any of the other PMC-approved criteria?

The real, but unspoken problem groups like PMC have with voters is that they too often fail to choose the kind of liberal activist judges that legal elites and their allies support.  Here’s to hoping that PMC is still pushing that “merit” selection rock unsuccessfully up the hill so its around to “celebrate” its 50th anniversary.

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Beware of Politicians Promising Reform

September 8th, 2014

“No single issue is more important to the needs of average Americans,” according to Senators Tom Udall and Bernie Sanders in an op-ed today.  Are they talking about today’s lackluster economy, stubbornly high unemployment rates or the tragedy of millions of Americans dropping out of the labor force altogether?  Or maybe they mean the rise of ISIS in the Middle East, beheading innocent Americans and threatening our homeland?  Or perhaps they’re thinking of Vladimir Putin’s revival of the Cold War in the annexation of the Crimea or invasion of Ukraine?

No, according to Udall and Sanders, the real “threat to American democracy” today is too many wealthy Americans and businesses are exercising their First Amendment right to participate in the political process.  So they’re pledging a vote on a constitutional amendment to impose “campaign reform” – which is Washington-speak for “protecting incumbents.”  And they’re launching “an unprecedented grass-roots movement” to show that the “buying of elections is not what American democracy is all about.”  The proposed amendment exempts the press, keeping the playing field tilted toward liberals.  No doubt Big Labor will get a pass as well.

Interestingly enough, Udall’s cousin, Colorado Senator Mark Udall, is locked in a tight re-election race.  He’s out-raised challenger Cory Gardner by nearly 3:1 ($13.5 million to $4.9 million).   His top contributors include the League of Conservation Voters and NextEra Energy (Udall is on the Energy and Natural Resources Committee), plus the usual assortment of politically-connected law firms (thanks open secrets).   But if Tom Udall is worried that Mark Udall has been bought by groups with a direct interest in his committee work, he isn’t saying.

Then again, Tom Udall himself received a 100 percent rating from the League of Conservation Voters in 2013.  His biggest campaign contributor so far in his 2014 race … the League of Conservation Voters.  I guess the only candidates who haven’t been corrupted by dirty money are those named Udall.

Udall and Sanders also fail to note that the single largest individual donor to federal campaigns is hedge fund operator turned environmental zealot Tom Steyer, who has personally dumped more than $20 million into campaigns and plans to spend $100 million through his SuperPAC NextGen Climate.  All his money has gone to Democrats.

As Ted Olson writes in today’s Wall Street Journal, “voters, whatever their political views, should rise up against politicians who want to dilute the Bill of Rights to perpetuate their tenure in office.”  In other words, beware of politicians promising reform.

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A System So Toxic We Dare Not Speak Its Name

September 5th, 2014

The Wichita Eagle has an editorial today praising Governor Sam Brownback’s elevation of his former chief counsel and Court of Appeals judge Caleb Stegall to the state Supreme Court and of the nominating system that facilitated Stegall’s selection.

Brownback has made enemies among editorial boards and legal special interest groups for leading the fight against “merit” selection.  He got it abolished for Court of Appeals judges and has pledged to do the same for the Supreme Court, rightly arguing that the system “failed the democracy test.”  The Eagle’s hope is that since the nominating commission offered up a Brownback favorite, the governor will now make peace with “merit” selection and “call off the legislative dogs” trying to scrap the lawyer-dominated panels.  Let’s hope Brownback isn’t that cynical … or gullible.

Reading the editorial, it’s amazing to see how much the debate about “merit” selection has shifted since americancourthouse launched 6-plus years ago.  Back then, supporters of the system proudly proclaimed the expertise of the lawyer panels, who, they boasted, chose judges based only on “merit” and, unlike ordinary voters, remained aloof from all crassly political considerations.  Now, the “merit” selection cabal resorts to gauzy euphemisms like “bipartisan citizens commission” when talking about selection panels.  Even the name “merit” selection has been shelved – replaced by the banal “commission-based gubernatorial appointment” – or the preposterous – “O’Connor Judicial Selection Plan.”

When even “merit” selection’s key supporters recognize that the system they favor has become so toxic that they can’t even refer to it by name, those who favor democratically-chosen judges can feel confident we’re on the winning side of this debate.

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The End of “Merit” Selection in Tennessee? Or “Merit” Selection Through the Back Door?

September 4th, 2014

A strong op-ed the other day in support of Amendment 2 in Tennessee – a ballot initiative that would end the state’s experiment with “merit” selection and adopt a model similar to the federal system.  Justin Owen, President and CEO of the free-market Beacon Center of Tennessee writes that this approach “strikes a great balance between making sure we have judicial independence to uphold the rule of law, while holding judges accountable to the people and our elected representatives.”  While I would have preferred democratic judicial elections, Amendment 2 at least opens the possibility of ending the legal elite’s chokehold on judicial nominations.

But while Tennessee has done away with de jure “merit” selection, there is still a danger the state will get stuck with “merit” selection through the back door.  That’s because even though “merit” selection has officially expired, the governor created by executive order a judicial nominating commission to screen judicial candidates.  By my quick count, the 17-member commission has 13 lawyers and 4 non-lawyers.

The good news is that Tennessee’s governor can ignore the commission’s choices and pick whomever he or she wants, subject to legislative confirmation, or even abolish the commission entirely with the stroke of a pen.  The bad news is that the lawyer’s guild still plays an outsized role in choosing who sits on the bench.

I guess this is progress of a sort.  No one dares to endorse a full-fledged “merit” selection system in Tennessee anymore.  Even groups that have served as bagmen for “merit” selection for years (like Justice at Stake) are so embarrassed by their system’s unpopularity they’re afraid to speak the words “merit” selection when discussing Amendment 2.  But voters and business leaders need to remain vigilant.  Amendment 2 won’t kill off “merit” selection if elected governors continue to kowtow to the legal elites that dominate the nominating commission.  Real reform in Tennessee won’t take place until we ditch the lawyers once and for all and put judicial selection back where it belongs – with the people and their elected representatives.

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Why Are the Tennessee Supreme Court Justices Making “Political” Decisions?

August 27th, 2014

The idea that judges should stay out of politics unites people of just about every political stripe.  So why are Tennessee’s five Supreme Court justices preparing to make “the first political decision” of the new term when they choose the state’s next Attorney General?

Blogger Tom Humphrey’s predicts the outcome will depend on how that “five person electorate” decides “which applicant is in their best political interest.”  Three out of the five justices were appointed to the bench by a Democrat, while two were chosen by a Republican.  Any guess about the political affiliation of the next Tennessee AG?

Over the past few decades, the AG post has evolved into a stridently political position, with AG’s inventing new theories under which to sue businesses and using their position as a launching pad to higher political office.  So what exactly is the rationale for letting five justices make this “political” decision rather than the state’s nearly four million registered voters?

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The Nation’s Top ‘Judicial Hell Hole’

August 22nd, 2014

Attorney Mark Pulliam has a great piece in the City Journal that shreds the “pro” arguments for “merit” selection, as well as the “con” arguments against democratic judicial elections.  Some highlights:

  • “In California, merit selection has contributed to the creation of the nation’s top ‘Judicial Hell Hole.’
  • “Texas, [which utilizes judicial elections], is consistently hailed by business groups and CEOs for having one of the nation’s best business climates, ranking first in most surveys.”
  • “Judges sometimes forget – perhaps because they wear black robes, wield a gavel, sit behind an elevated bench, and are called Your Honor – that they are just public servants, no different than legislators or governors.”
  • “We want judges to be ‘independent,’ but we also want them to be accountable … Judges sometimes deserve to be voted off the bench, and the knowledge that they will face voters can motivate them to perform their duties with diligence and integrity.”
  • “ … merit selection is usually controlled by the organized bar.  Lawyers as a group are not representative of the general population, and lawyers active in the state bar (or ABA) tend to be particularly partisan and ideological.  (The policy positions adopted by the House of Delegates of the ABA, for example, are indistinguishable from those of the ACLU, and a far left-of-center of mainstream public opinion.”
  • “Merit selection panels, such as the Judicial Nominees Evaluation (JNE) Commission in California, tend to be captured by special-interest groups … who use the evaluation to black-ball judicial candidates who don’t share their views – such as conservative lawyers or proponents of civil justice reform.”
  • “Merit selection … does not remove politics from judicial selection; it simply takes control from the voters and puts it in the hands of politically active lawyers, while reducing transparency.”

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Legal Reform Seen as Key to Economic Growth in Louisiana

August 18th, 2014

Melissa Landry of Louisiana Lawsuit Abuse Watch has a piece on the impact of Louisiana’s lawsuit-happy culture on the state’s economy.  According to Landry, abusive litigation hits state businesses with $1.1 billion per year in legal expenses and costs the state 50,000 jobs.  Three out of four Louisianans support reforms to limit lawsuit abuse, but until action is taken Louisiana will “continue to leave jobs and opportunities on the table,” according to Landry.

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A Victory for Accountability in Tennessee

August 18th, 2014

Three liberal Tennessee Supreme Court justices may have survived their retention elections, but the vote put judges on notice:  Tennesseeans aren’t just going to rubber stamp judges forced on them by the state’s legal elite.  Although the justices received about 56 percent of the vote, the margin was far less than the Putin-like reelection victories of the past.  As Susan Kaestner of the Tennessee Forum put it, “for probably the first time ever, the Supreme Court has been held accountable to some degree.”

Wresting our state judiciaries back from the lawyers’ guild will be a long process.  Tennessee took a step in the right direction by challenging a group of liberal justices who are out of touch with the people they serve.

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A Flood of Money?

August 10th, 2014

Add Bloomberg Businessweek to the list of gullible news outlets duly reporting the Justice at Stake/Brennan Center/Other Soros-Financed Groups line that money is “flooding” into Tennessee’s upcoming retention race for three Supreme Court Justices.  The article tsk-tsks over the $268,000 spent on television ads by outside groups (less than the judges themselves are spending, BTW).  By comparison, that’s about as much as University of Tennessee football fans spent on hot dogs and Cokes at the Vols’ Orange-White spring exhibition game. Some crisis. Personal foul Businessweek – 15 yard penalty.

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Tennessee Justices Outspending Retention Opponents

July 31st, 2014

Despite all the public fretting about money in judicial races, spending in the supposedly “white-hot” Tennessee judicial elections has been pretty tepid.  Gavel Grab notes that total spending in the retention races for three state Supreme Court justices has reached just over $578,500, with the incumbents handily outspending all opponents.  Compared to other statewide races, that’s a drop in the bucket.  Sitting Senator Lamar Alexander has raised nearly more than 12 times that much ($6.9 million-plus), according to an analysis by opensecrets.org.  In fact, the amount raised in seven of the state’s nine congressional races is higher than the statewide totals for the three justices.  All of which goes to show that all the hand-wringing about the alleged “crisis” of spending in judicial races is just a lot of hot air designed to intimidate business groups and other advocates from exercising their First Amendment to participate in the election process – even when it comes to the judges who will serve them.

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