No Merit for Virginia
August 27, 2008
An editorial from the Roanoke Times calls for reforming Virginia’s judicial selection process that makes the process “free of political influence” – but then promotes the one system that ensures that powerful special interest groups will control who sits on the bench.
Right now, Virginia judges are chosen by the General Assembly. When the Assembly can’t agree – which often happens when control of the chambers is divided – either the governor or circuit judges make the nomination, depending on which court has a vacancy.
To replace this “dysfunctional” system, the Roanoke Times supports a “merit” selection scheme – where a small group, usually dominated by lawyers, meets in secret to pick judges. The Times bemoans the fact that judges today are “beholden to lawmakers for getting and keeping their jobs.” But isn’t it preferable – not to mention more democratic – for judges to be responsible to elected representatives chosen by the people, rather than having them be responsible to a completely unelected, unaccountable panel controlled by legal special interests?
In state after state that has experimented with secret/merit selection, the makeup of the judicial nominating commissions are determined by special interest groups such as the state trial lawyers association and the state bar association. Far from freeing judicial selection from “political influence,” these Star Chambers merely move politics behind closed doors, away from public oversight and scrutiny.
Take Missouri, where the state’s judicial selection board has consistently tried to ram activist judges through, despite Gov. Blunt’s election on a platform to appoint rule-of-law judges. Or Tennessee, where 75 percent of the commissioners who pick judges must by law come from legal special interests.
When unelected, unaccountable Star Chambers are given the authority to select one-third of the state government, it’s usually not long before the commissioners come to see this power not as a public service, but as a sacred right. In Tennessee, even Gov. Phil Bredesen’s proposal that would have required the panel to meet in public, rather than behind closed doors, has gone nowhere.
You can expect Virginia’s legal elites to fall-in behind the Roanoke Times’ push for “merit” selection – after all, what lawyer doesn’t think other lawyers should have more control over the courts? You can also expect special interest groups like Justice at Stake – bankrolled by hedge fund billionaire George Soros – to applaud approvingly; in fact, right on cue, their blog praised the Times’ editorial.
But the people of Virginia should not be fooled. Groups like Justice at Stake aren’t pushing non-partisan reform – as this Wall Street Journal editorial makes clear. They aren’t out to remove politics from the judicial selection process; they just want to make sure that judges who sit on the bench share their goal of an activist judiciary.
The truth is no system can completely remove politics from the courts. So the question then is, should we have our politics out in the open with democratic judicial elections or should it take place behind closed doors under “merit” selection? The real path to reform in Virginia lies in making the judicial selection process more democratic and more accountable to the people, not less. The real path to reform: direct judicial elections.