A Dissent To Olson’s Dissent
July 17, 2008
Walter Olson, a friend to many of us in the legal reform movement and the invaluable chronicler of trial lawyer abuse through Overlawyered.com, came out against judicial elections today in a forceful opinion posted at PointofLaw.com. I have a great deal of respect for Walter’s scholarly contributions to reforming America’s tort system, but on this question he and I must regrettably part company.
Walter praises the federal system for selecting judges, but he makes no distinction between that system and “merit selection,” and most dramatically, even leaves the impression that “merit selection” is a close approximation of the federal system. It isn’t. Imagine if it were: the American Bar Association and the American Trial Lawyer Association would serve up a list of U.S. Supreme Court nominees from which the president would choose.
Under “merit selection,” judges are chosen by a small, elite commission, which then passes a list of approved candidates on to the governor, who must pick from that restricted list. These commissioners in whom we entrust control over 1/3rd of our state governments are unelected and unaccountable. The judges selected under such a system are not accountable to the governor that appointed them and are not accountable to the people in any way, but are only accountable to a handful of commissioners that selected them—in Missouri’s case, just seven people.
Proponents of so-called “merit selection” are not advocating a federal-style judicial selection process at the state level. The goal for George Soros, Justice at Stake, Judges On Merit and all of the other groups Soros is funding is to create judicial Star Chambers: move judicial selection behind closed doors, out of the control of any political leader answerable to the public. They are spending tens of millions of dollars to achieve this goal. Given this extravagantly well-funded campaign, this is no longer an academic exercise, but a political battle.
“Merit selection” proponents claim they want to take unseemly politics out of judicial selection. Baloney. The politics just go behind closed doors as I and others have pointed out before (here here, and here). Whatever system is used for choosing judges — judicial elections, the Federal system, or “merit selection” — each is political. Taking control from the people and giving it to unelected lawyers does not make it less “political,” no matter what “merit selection” activists say. Like the old ad for Salem cigarettes, you can’t take the politics out of judicial selection. So because judicial selection is a political question, I want it to take place out in the open rather than in secret.
Walter makes a strong case that elections are messy and provide no guarantee that the best judges will reach the bench—and there’s no denying it. For decades, the trial bar monopolized judicial elections, bringing us scores of activist judges that produced the “nightmare jurisdictions” Walter cites. It’s only been in recent years that supporters of rule-of-law judges entered the arena. Since then, rule-of-law judges, who are routinely blackballed by “merit selection” commissions, have had great success winning popular election. Does anyone believe that a commission dominated by trial lawyers and left-leaning state bar associations would have produced Michigan’s Supreme Court majority of Justices Taylor, Markman, Young and Corrigan, all of whom were chosen by the people of Michigan? Or take the case of Wisconsin, where voters recently ousted an activist (appointed) Supreme Court Justice who rewrote enterprise tort law in the state and single-handedly threatened to turn Wisconsin into a litigation nightmare.
Winston Churchill once said that democracy is the worst form of government—except for all the others. The same can be said for choosing judges through elections. Given today’s choices—between judges selected by a small group of legal elites and judges voted in by the people—I’ll take the people every time.