Dim Prospects For Legal Reform In An Obama Administration
May 30, 2008
Ted Frank, director of the AEI Legal Center for the Public Interest and contributor to PointofLaw.com and Overlawyered.com, dissects Barack Obama’s voting record on legal reform legislation in an op-ed this week in the Washington Examiner.
Despite his campaign’s non-partisan or bipartisan or post-partisan pretensions, Frank writes that Sen. Obama’s votes leave little doubt an Obama administration would be captive to powerful special interest groups like the trial lawyer lobby.
Money quote:
“Each amendment [to eviscerate the Class Action Fairness Act] failed by large bipartisan majorities, supported only by Democrats; each time, Obama voted with the trial lawyer lobby.
“These votes were not outliers. Obama also voted to filibuster medical malpractice reform and to kill an asbestos reform bill in 2006, each time providing a critical vote for a minority of senators that blocked tort reforms from achieving a three-fifths supermajority. That is hardly reaching across the aisle, much less showing a willingness to flout a Democratic special interest.”
Fieger Update
May 30, 2008
After 18 days of testimony and a full day of closing arguments, jurors in the criminal case against Geoffrey Fieger began deliberations on Wednesday this week. After two days, they had not reached a verdict and will be back at it again today.
Fieger is accused of illegally reimbursing more than $100,000 in political donations made by employees and others to John Edwards’ 2004 presidential campaign. He also is charged with obstruction of justice.
The Battle Continues In Tennessee
May 29, 2008
The people of Tennessee got a step closer to reclaiming their constitutional right to vote for state judges when the legislature adjourned last week without reauthorizing the judicial selection commission. But an article in the Memphis Daily News makes it clear the battle is not over.
While Tennessee’s judicial selection commission has entered a one year “winding down” phase, expect proponents of secret selection of judges to push harder in next year’s legislative session. Vanderbilt law professor Brian Fitzpatrick offers a preview of the coming fight:
“I think you’re going to hear a big contingent of people who do not believe that voters are well educated enough to select judges,” Fitzpatrick said. “A lot of people hold that view, not just lawyers – that the law is a specialized field and people with legal training are really the best judges of who the best judges are…It’s frankly a bit paternalistic to tell people that they are not educated enough to make decisions about public officials who have a lot of power over their lives.”
Fitzpatrick has authored an important study on Tennessee’s judicial selection plan, which can be viewed here.
For more on the state’s judicial selection battle, check out Bill Hobbs’ blog, the best one out there for staying on top of Tennessee politics.
Pay No Attention To The Politics Behind The Curtain
May 29, 2008
Those who believe we should replace the democratic election of state judges with a Secret Selection committee should read The Washington Post’s “Maryland Moment” blog.
Today’s post reveals the nasty politicking that occurs behind the Secret Selection committee’s closed doors. Three members of Maryland’s Judicial Nominating Commission have resigned in protest due to heavy political pressure to appoint the son of the president of Maryland’s State Senate to a district court bench.
Even blogger Alan Greenblatt of Ballot Box, a “merit selection” supporter, had to admit:
“…this just shows, yet again, that an appointment system is no bar to politics playing a role in filling out the judiciary.”
A New Argument for “Secret Selection” In PA
May 29, 2008
Shira Goodman at JudgesOnMerit.org argues that Secret Selection (aka “merit selection” – where lawyers meet behind closed doors to pick judges) is actually more democratic than elections by the people.
So let me get this straight: Choosing judges by direct election, where all Pennsylvania citizens can exercise their constitutional right to vote, is undemocratic. But a system where just 14 commissioners (mostly lawyers) meet in secret, with absolutely no public accountability, to decide who sits on the bench is the height of democracy?
Goodman worries that judicial elections have become too expensive. She has a point – but the same can be said of all elections.
In the recent Pennsylvania primary, Barack Obama spent more than $8 million in just four weeks – more than double the $3.3 million spent by Hillary Clinton. Should Pennsylvanians give up their right to vote in the Democratic primary and allow party leaders to select the nominee behind closed doors? Governor Rendell outspent his opponent by 4:1 in his 2006 reelection campaign. Should governors be chosen by secret committee too?
While we’re at it, let’s set up commissions to pick our mayors, senators, and representatives. That way campaign cash won’t poison these elections and compromise the candidates. In the end, we’ll have no elections, but a perfect democracy – at least in the eyes of Shira Goodman.
Everyone agrees that judges must be independent and impartial. But, like every other public servant, they must also be accountable to the people. Proponents of Secret Selection want to turn over control of 1/3rd of the state’s government to a tiny handful of people, while shutting out millions of voters. There are lots of adjectives to describe such a system, but democracy isn’t one of them.
NanoTech=MegaLitigation?
May 28, 2008
Carter Wood over at NAM’s ShopFloor blog (also cross posted to PointOfLaw.com) is tracking the latest developments regarding a nanotechnology study that’s getting a fair amount of news coverage.
Could nanotech become a magnet for asbestos-style litigation? A letter to the editor in yesterday’s Washington Post (”Overstating the Nanotube Threat“) tries to calm down the debate. In the meantime, keep your eye on ShopFloor’s coverage.
Putting Nevada On The Radar Screen
May 28, 2008
The Las Vegas Review-Journal recently polled lawyers in Clark County, Nevada to find out which system they favored for selecting judges: democratic elections, where voters decide, or a “merit selection” system, where a committee of lawyers vets candidates in secret and then sends an approved list to the governor.
Guess what? Lawyers think they ought to be in control!
Although the margin was overwhelming (2:1) at least one attorney got it right:
“The system we have in place [democratic elections] is the best. It allows the citizens of Clark County the opportunity to get rid of judges in elections, as they have clearly done in the past,” one pro-elections attorney wrote.
Nevada citizens have twice voted to preserve democratic elections and turned thumbs down on “merit selection.” But the lawyers keep on trying. Legislation has been introduced in the Nevada Senate (Senate Joint Resolution 2) to do away with elections, but it must pass the legislature twice before it can be put before the voters again - that means no earlier than 2010.
Why The New York Times Distrusts Democracy
May 28, 2008
Adam Liptak of the New York Times has a long piece comparing democratic judicial elections in America unfavorably with the French system where judges complete a “four-day written test” before entering “the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.”
Liptak uses as his jumping off point last month’s Wisconsin supreme court race – where challenger Michael Gableman unseated Justice Louis Butler. While Liptak decries the “bitter $5 million campaign,” he never tells readers why the race was so hotly contested.
Justice Butler was appointed after decisively losing his own bid for election to the court. He immediately shifted the court in a radical new direction, inventing new theories of liability that threatened to turn Wisconsin into a tort magnet. Without public accountability in the form of democratic elections, it’s unlikely the people of Wisconsin could ever have pried Butler off the bench.
For the sake of balance, Liptak quotes University of Virginia Professor David O’Brien, who praises the “greater transparency in the American system.” He also notes the study favorable toward judicial elections published by the University of Chicago (which we’ve blogged on many times), but fails to highlight its most important conclusion, which is that elected judges are more independent than appointed judges.
Yet Liptak clearly yearns for the “much more rigorous French model” where “aspiring judges are subjected to a battery of tests and years at a special school.” No one would argue that knowledge of the law is unimportant when it comes to selecting judges; this is why we expect lawyers to pass the bar exam before they are allowed to practice. But this does not defeat the case for democratic elections – which is that judges, like all other public servants, must be accountable to the people. Sometimes this accountability is direct, such as through judicial elections; sometimes it is indirect, such as federal judicial appointments which are made by an elected president with the advice and consent of elected senators.
The notion advanced in this article that judges require some sort of specialized training or esoteric knowledge beyond what is required to be admitted to the bar is really just another way to insulate judges from the people. Elites use this argument as a wedge to suggest that voters are not smart enough to determine who has the character, integrity, and yes, legal training to deserve a seat on the bench. This is ultimately why they distrust democracy in the form of contested elections and advance other proposals for choosing judges, such as “merit selection” or the French system.
The real question here is whether we should have a source of power in this country that is completely independent of the people. While the Times seems to say “yes,” in most states, Americans have fought to preserve democratic judicial elections to ensure that judges remain accountable.
As Tennessee Goes, So Goes The Nation?
May 27, 2008
Nice editorial in today’s Wall Street Journal on the welcome demise of Tennessee’s judicial selection Star Chamber.
Money quote:
“The Tennessee plan was devised to reduce the role of politics in judicial selection. But as the political drama surrounding it amply demonstrated, the reality has been anything but nonpartisan. Tennessee now has a chance to restore transparency and accountability to judicial nominations – and to show other states the way.”
Doubling Down On A Losing Hand
May 24, 2008
Poor Shira Goodman - part of the gang over at Pennsylvanians for Modern Courts that wants to abolish the constitutional right of Pennsylvania citizens to choose that state’s judges and let a committee of lawyers meet in secret to decide who sits on the bench. She’s got a losing hand but she just keeps doubling down.
In a post today in response to my post yesterday, Goodman rants that it’s really her group that wants to protect the right to vote. Why? Because they want to let Pennsylvania citizens decide for themselves whether to end judicial elections.
Suppose Goodman and her group succeeded in persuading 50% + 1 of Pennsylvanians to do away with judicial elections. So what? In our democracy, Voter A and Voter B cannot conspire to take away the rights of Voter C.
Goodman wants us all to defer to what she calls the “democratic process” - but the problem is that democracy means quite a bit more than simply “the majority rules.” In fact, one of the most important duties of government is protecting the constitutional rights of the minority against the wishes of the majority.
Hedge fund billionaire George Soros is spending a fortune funding groups like Pennsylvanians for Modern Court to try to abolish judicial elections. Let’s hope for his sake he’s getting more for his money than losing arguments like the one Goodman is pushing.