James Madison, Call Your Lawyer

August 14, 2008

If you are going to engage in judicial overreaching, why not reach for it all?

The “merit-selection” movement has now entered its inevitable new phase. In a stunning rejection of more than two centuries of Constitutional advice and consent, the American Bar Association is touting a proposal that would institutionalize the role of home-state senators and that of a “bipartisan” commission, giving them equal weight to the role of the President of the United States in selecting federal judges.

In a hard-hitting editorial today The Wall Street Journal lays waste to the ABA scheme.

In its piece, The Journal quotes Bert Brandenburg, the executive director of the George Soros-supported organization, Justice At Stake:

“Judges are not politicians in robes, nor are they prizes to be won by aggressive special interests.” (For more see Gavel Grab.)

Of course this sentiment ignores the politicization of the judiciary in our time and the increasing need for public judicial accountability – which I believe is best achieved through judicial elections. Ted Frank of AEI and PointofLaw.com captured this point very well recently when he said:

“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.”

ABA President Thomas Wells is also quoted in the WSJ editorial saying that one purpose of the ABA’s measure is to avoid “really rancorous debates” in the confirmation process. Why stop there? We could also avoid the really rancorous presidential contests that occur in this country every four years by letting a similar “bipartisan commission”—composed of all the correct people, of course—select our presidents for us.

Another way to avoid the really rancorous debates of our current era, of course, would have been for the ABA’s judicial review panel to rate judicial nominees fairly, as you would expect of a professional organization—instead of rating leading national legal scholars, like Judge Bork, as “unqualified.” But that cat has long since slipped that bag.

The Journal weighs in on the proposal for a “merit commission” composed of “lawyers and other leaders” by adding:

“But with so many modern judges bent on writing law by fiat, doctors, firemen and used car salesmen are just as qualified to opine on judicial philosophy. In fact, we’d prefer the used car salesmen.”

The ethics of marketing previously owned vehicles is not such a bad standard for ABA leaders to try live up to. After all, a few years ago such a “merit board” could easily have included John Edwards, Mel Weiss, Bill Lerach and Dickie Scruggs.

Posted by in the categories: Judicial Elections, Justice at Stake