Olson Dissent Stirs Up Debate

July 18, 2008

Walter Olson’s dissent more on judicial elections has stirred up a fascinating debate at PointofLaw.com. Ted Frank at AEI weighs in with several crucial points:

The George Soros campaign against judicial elections needs to be recognized as part of a larger campaign for judicial supremacy and the idea that judicial decision-making is beyond questioning by other branches of government, or even beyond disagreement from the outside world.

This is exactly right. Judges are not Delphic oracles whose pronouncements can only be pondered, but never debated. They are not infallible; they are prone to error or abuse of power, just like any other public official. In recent years, the most common manifestation of this abuse has been judges who exceed their authority by legislating from the bench – inserting themselves into social, economic and regulatory issues that are the proper domain of elected legislatures. The authors of our state constitutions recognized the need for a check on judicial power, which is why 39 states hold some form of judicial elections to require that judges remain accountable to the people.

Although Frank writes his feelings about judicial elections are “mixed,” he notes how the politicization of the judiciary in our era supports the idea of public judicial accountability:

When a California Supreme Court unilaterally amends the state constitution or a Wisconsin Supreme Court announces that it will act as a super-legislature to strike down medical malpractice legislation because it disagrees with the actual legislature’s conclusions, the judiciary has ceased to act as a judicial branch, and is just another branch of government. As a first choice, I would prefer the judiciary to be a judiciary, but if it is not going to do so, then it is hard for me to see why the self-appointed philosopher-kings should not be directly answerable to the voters.

Jim Copeland at Manhattan Institute picks up on my point that the “merit selection” schemes being pushed by Soros-funded groups has little in common with the federal system and would instead put legal special interests in charge of choosing judges:

Almost by definition, merit “screening” committees would be composed of select groups of lawyers who have the self-interests of the legal profession at heart….The ABA evaluation process at the federal level should make anyone pause before embracing merit selection of judges at any level.

Copeland also quotes a Federalist Society report (courtesy of Ted Frank) which dissects the Missouri Plan – long considered the ne plus ultra of “merit” systems:

Thus, far from taking judicial selection out of politics, the Missouri Plan actually tended to replace politics, wherein the judge faces popular election (or selection by a popularly elected official) with a somewhat subterranean process of bar and bench politics, in which there is little popular control.

Many of those who commented on Walter’s original post recognize the fatal flaws of “merit selection,” but seem to want the chance to start over – as if we were engaged in an academic exercise to design the best system for choosing judges. But this debate is not being fought only at think tank seminars. A single billionaire is spending tens of millions of dollars on a highly-coordinated political campaign to fundamentally alter the way judges are selected in America, with the goal of rewriting state constitutions and handing the power to choose 1/3rd of state governments over to a tiny group of unelected legal elites. Whatever our reservations about judicial elections – and they are far from perfect – those of us who have long toiled in the vineyards of the legal reform movement need to understand the true nature of this threat and work together to defeat it.

Posted by in the categories: Judicial Elections


One Response to “Olson Dissent Stirs Up Debate”

  1. PointOfLaw Forum on April 8th, 2011 1:32 pm

    A slightly different take on Prosser-Kloppenburg…

    If the new vote tally coming out of Waukesha County holds, JoAnne Kloppenburg’s self-declaration of victory would seem even more premature than it did at the time. (And isn’t it a bit unseemly for a prospective state-supreme court justice to……