Show Me The Rulings
September 30, 2008
Ohio Judge Joseph Russo is concerned about the public perception that by contributing to judicial candidates someone can “buy a vote on the court.” In fact, Judge Russo thinks this mere perception is “just as bad” as a judge actually acting corruptly by shifting a decision to reward campaign contributors.
Things are so bad in Ohio that, in a 2002 survey, 83% of Ohio voters believed that cash influences judicial decisions. With this perception so widespread, Ohio courts must be rife with corruption and dozens of Ohio judges must have been impeached for their misconduct. Can someone show me these rulings?
Or maybe there’s another explanation. Maybe this perception just reflects the low regard voters have for all public officials – from presidents on down to state judges. Maybe that’s why a more recent public opinion survey by the American Justice Partnership Foundation found that 75% of voters believe judges should be elected by the people and two out of three said elections were an effective way to hold judges accountable.
Democracy In Action
September 30, 2008
For all those “merit” selection supporters who think voters can’t be trusted to evaluate judicial candidates, take a look at this video of an incumbent judge running for re-election in Minnesota. I have no opinion on Judge Philip Bush’s candidacy, but he shows that judicial candidates are perfectly capable of having a reasoned, open dialogue with voters about their judicial philosophies without impairing their ability to be impartial on the bench.
Mulling Over Michigan
September 29, 2008
Defending the right of citizens to choose state judges through democratic judicial elections can be a lonely job. You have to counter the arguments of the legal elite, including former U.S. Supreme Court Justices and sitting state Supreme Court justices, not to mention every state bar association in the country. You face stiff opposition from the media elite and a well-funded campaign by groups promoting various “merit” selection schemes. Then you run across the occasional fringe argument claiming that democratic elections, such as we have in Michigan, don’t represent the voice of the people.
Well, we take on all comers here at American Courthouse, so let’s have a crack at this and decide for yourself which system of selecting judges is more accountable to the people.
In Michigan, most judges on the Court of Appeals and the Supreme Court are appointed (when vacancies arise) by the governor. Since the governor is elected by the people, he or she is directly accountable for judicial selections. Under “merit” selection, the governor must pick from a slate of nominees chosen by a judicial selection commission. This commission meets in secret, is typically dominated by legal special interests, and is accountable to no one.
Once appointed, a Michigan judge must run in a contested election against a real opponent, making that judge directly accountable to the people. Sitting Michigan Chief Justice Cliff Taylor, for example, was appointed by my old boss Governor John Engler in 1997. In 1998, Justice Taylor won re-election to fill out the balance of his predecessor’s term. In 2000, Justice Taylor ran again and was elected to a full, eight-year term. Chief Justice Taylor is currently running for re-election against sitting Wayne County Circuit Judge Diane Hathaway. (Full disclosure: my wife, Colleen is Taylor’s campaign manager and I worked in Gov. Engler’s administration) If Chief Justice Taylor is returned to the bench, he will have faced Michigan voters three times, after being appointed by a governor who had to answer to the people for his appointment.
It’s true that incumbent judges generally have a better shot at winning re-election, but this is true for every officeholder – from school board members to Senators. Under “merit” selection, judges face no real opponents, only an up-or-down vote, and are returned to office more regularly than Politburo members in the old Soviet Union.
I’ve heard arguments that the federal system for choosing judges is analogous to “merit” selection because federal judges never face elections. True, but as I have said before, federal judges are chosen by Presidents that are directly accountable to the people and confirmed by Senators that are directly accountable to the people. In fact, judicial nominations have become such an important issue to Americans that candidates for the White House and the Senate devote entire campaign speeches and television ads to informing voters what type of judges they would put on the courts. More importantly, in making a judicial nomination, the President is not bound by the choices of an unelected commission. If the federal system and “merit” selection were truly equivalent, then the President would be forced to pick from a list of three names supplied by the American Bar Association and the American Trial Lawyers Association.
So let me get this straight: A judge chosen by a tiny tribunal of unelected special interest groups somehow represents the voice of the people better than a judge chosen by an elected governor who had to go before every voter in Michigan against real opponents on three separate occasions? Is that really what “merit” selection supporters believe?
Missouri Legal Special Interest Group Comes Out Against Reform
September 26, 2008
Surprise, surprise. Prime Buzz reports that the Missouri Bar Association has come out against a proposal by gubernatorial candidate Kenny Hulshof to reduce the influence of legal special interest groups (like the Bar Association) in selecting Missouri judges. Prime Buzz has posted the full text of the Bar Association’s statement. You can read my previous post on the Hulshof plan here.
The Missouri Bar Association protests that it is a “diverse organization” that represents “every practicing lawyer in the state.” But the fact that some Bar Association members got their law degree at the University of Missouri while others got their JDs at Washington University doesn’t really make the group diverse. And why do lawyers believe they should enjoy some special privilege when it comes to choosing who will control one-third of the state government? Don’t teachers have a right to an equal voice? Or policemen? Or firefighters? Or doctors? Or CPAs? Or small business owners?
Yes, the Missouri Bar says, but “voters have the final say” because they get a yes or no vote on whether to retain judges once in office. If anyone knows the answer to this question, please let me know: Since the Missouri Plan was adopted in 1940, how many sitting judges have lost retention elections? I know since Tennessee ended democratic elections in the 1970s, 145 out of 146 judges have been returned to the bench.
But the current system “reduces the excesses of partisan politics” in choosing judges, the Bar claims. Well, out of the last 21 nominees to the state Supreme Court chosen by the non-political commission, 19 have been Democrats. Last time I checked, Missouri Democrats didn’t outnumber Republicans 90% to 10%. And Governor Matt Blunt has been locked in a political battle with the state’s “nonpartisan” nominating commission virtually since he took office. If partisanship is the standard by which to judge, then the Missouri plan has been an abject failure and deserves to be radically reformed or thrown out entirely.
My own strong preference is for democratic judicial elections to ensure that judges are accountable to the people they serve. But the Hulshof plan is an acid test for special interest groups: Are they really in favor of a nonpartisan commission picking judges? Or do they really just want to protect their own power in choosing who sits on the bench?
Oops…Will “Merit” Selection Supporters Apologize For Smearing Louisiana Judges?
September 25, 2008
Proponents of ending state judicial elections and switching to “merit” selection argue that such a drastic curtailment of democracy is necessary because campaign contributions allow donors to “buy” favorable verdicts. They’ve never had any actual proof – just manufactured public opinion polls that suggest a public “perception” that campaign money unduly influences judges. So when a Tulane University law professor and a Loyola University economics professor published an article in Tulane’s law review earlier this year that smeared several Louisiana Supreme Court justices by claiming that contributions swayed their votes, the anti-election crowd pounced.
The New York Times ran a huge article pronouncing the results of the professors’ study “not pretty” and sneered that at least on Louisiana’s court campaign cash trumped judicial philosophy when it came to making decisions. Judges on Merit hailed the study in a blog post entitled, “Louisiana Study Confirms that Money Can Buy Verdicts,” and wrote that the study shows that in Louisiana “campaign contributions to judges are a good way to get an advantage in the courtroom.” Gavel Grab (Justice at Stake’s blog) also reported on the study.
There’s only one problem. The Tulane study turned out to be bogus. It was so deeply flawed that Tulane Law School Dean Lawrence Ponoroff was forced to send a letter to every Justice on Louisiana’s Supreme Court apologizing for the “faulty data” used to reach “conclusions [that have] been called into question.”
Among the flaws turned up by independent reviewers:
- “the study relied on just 186 decisions out of the thousands reviewed in 16 years of data” by the study’s authors.
- “in 37 of the 186 opinions included in the study, the information about the case on which [the authors] based their conclusions is just plain wrong, such as how a justice voted or even if the justice was on the panel that decided the case.”
- Independent reviews “also presented a litany of other study criticisms, including the lack of factual or legal analysis of any single case and a lack of evidence that any case was decided incorrectly.”
Justice John Weimer was gracious enough to accept the dean’s apology, but not before pointing out that:
What is so disappointing about this is the damage that has been done to the state of Louisiana unjustifiably. This irresponsible article becomes a tool for those who benefit from such unwarranted attacks on our state’s reputation.
And what about the partisans that were all too anxious to exploit this “tool?” The New York Times published a short, grudging “editor’s note” containing a non-apology apology to the Louisiana justices unfairly smeared by the faulty study. And Judges on Merit and Gavel Grab? Well, we haven’t heard from them yet.
Reform Plan A Test Case For Supporters of “Merit” Selection
September 24, 2008
Proponents of “merit” selection always object to the claim that their system of choosing judges puts too much power in the hands of lawyers at the expense of ordinary citizens. Well, now we have a test case to see whether their objections should be taken seriously or whether they are just political rhetoric.
The Kansas City Star’s blog, Prime Buzz, reports that in Missouri, Republican gubernatorial candidate Kenny Hulshof has proposed a plan to reform the state’s judicial selection commission by reducing the role of special interests in deciding who sits on the bench. The plan involves three major reforms:
- First, the Hulshof plan would replace three commissioners selected by legal special interest groups with three randomly selected retired judges, reducing the role that special interests play in picking judges.
- Second, the Hulshof plan would allow the governor to make five selections to the seven member commission rather than the current three and would remove the sitting chief justice from the commission. This would make the commission more accountable to an elected representative of the people, rather than to special interest groups.
- Third, under the Hulshof plan, the Governor would not be bound by the choices of the commission, but could choose his/her own nominee after rejecting two slates of candidates.
Under Hulshof’s plan, “merit” would still be taken into consideration by the judicial selection commission in nominating, but the commission would be accountable to the elected representative of the people, not to legal special interest groups. Will Justice at Stake and other allegedly non-partisan groups come out in favor of Congressman Hulshof’s plan? Don’t hold your breath.
Law professor David Achtenberg of the University of Missouri-Kansas City gave us a preview of what to expect – the familiar “voters are too stupid” argument:
Even the most radical proposals for changing (the selection process) have not suggested eliminating the involvement of practicing lawyers, the people with the most knowledge of the candidates.
But judges don’t serve the lawyers, they serve the people. The impact of their decisions reaches people far outside the legal community. Doctors, business people, teachers, police officers, parents – the lives of all these ordinary citizens are influenced by rulings from the bench and they deserve as much say as any lawyer in deciding who will be handing down these decisions. No one would suggest that teachers be given more influence in choosing who sits on our school boards, even tough they probably have “the most knowledge of the candidates.” And no public good is served by giving lawyers undue influence over who sits on our courts.
Prime Buzz maintains that Missouri’s current system is “designed to take partisan politics out of the process.” But out of the last 21 nominees to the state Supreme Court chosen by the non-political commission, 19 have been Democrats. If partisanship is the standard by which to judge, then the Missouri plan has been an abject failure and deserves to be radically reformed or thrown out entirely.
I still believe that democratic judicial elections are the most effective way to ensure that judges are accountable to the people they serve. But Congressman Hulshof’s plan should separate the real proponents of ensuring that “merit” is part of the judicial selection process from those who just want to turn the job over to lawyers in order to advance their own political interests.
Louisiana Goes On The Radar Screen
September 23, 2008
The Shreveport Times (LA), according to a recent editorial, has “soured on” judicial elections and is calling for adopting some variation of “merit” selection – where a small committee dominated by lawyers meets in secret to pick judges. A blogger at the Central La. Politics blog helpfully points out such a move would require amending Louisiana’s Constitution, meaning
“…the voters of this state would have to voluntarily relinquish their right to vote for judges.”
That’s a pretty big step to take just to wash the sour taste out of the mouths of the Shreveport Times’ editors. But instead of justifying such a momentous act, the editorial just rolls out the usual boilerplate in a series of deeply flawed arguments.
The paper starts off by complaining that judges in judicial elections consistently run unopposed, so that for judges “once elected, always elected.” But since “merit” selection was adopted in Tennessee, 146 judges have stood for retention election and 145 have been returned to office (see study here). While I’d prefer to see more competitive judicial races, at least elections preserve the possibility that voters can replace a bad judge. The “merit”/retention system virtually eliminates that opportunity.
The Shreveport Times also worries that “the public’s ability to oversee bench competency is limited.” Arguing that voters ought to give up their right to vote because they are too stupid to use it responsibly never struck me as a winning argument, but at least the editors are honest. As I’ve said before, if voters can be trusted to elect legislators who write laws and governors who enforce laws, there is no good reason they shouldn’t be trusted to elect judges who interpret laws.
The editorial goes on to argue that contributions to judicial candidates by lawyers might give the legal community undue influence in the courtroom. But the “merit” system the paper supports would trade that chance for the guarantee that lawyers and legal special interests would unduly influence Louisiana’s courts. The paper even suggests putting the “local bar association” in charge of “look[ing] only at lawyers with established minimum years of experience and assess[ing] their competency with expert eyes.” But in a democracy, it’s not up to “experts” to decide who will govern us, it’s up to the people.
The issue of campaign cash playing too big a role in judicial elections is real – but it’s an issue that applies to legislative and gubernatorial races as well. Besides, as Louisiana attorney John Maginnis points out in a piece on Bayou Buzz,
The real effect of campaign contributions is to help elect candidates who share views with contributors rather than to cause a justice, once elected to a ten-year term, to reshape his or her judicial philosophy on a case-by-case basis in order to follow the money.
As far as the “merit” system reducing “the influence of politics” in judicial selection, take a look at my post yesterday where a Minnesota judge details the insider games that take place behind closed doors with judicial nominating commissions. Or this post, where a Tennessee judge talks about the politicized process for picking judges under that state’s “merit” system.
“Merit” selection hasn’t won much support in Louisiana – but we’re still keeping the state on our radar screen.
The Politics of “Non-Political” Judicial Selection
September 22, 2008
Proponents of abolishing democratic election of judges always claim that “merit” selection gets politics out of the process. But Minnesota judicial candidate Dan Griffith gives us a peek into the backroom dealing that goes on when judges are chosen in secret by “merit” panels controlled by lawyers.
There’s a strong correlation between those who actually end up on the appellate level courts and also on the district court level…that they first served on the selection committee, which means they were first politically appointed by the governor on this committee.From there, they get appointed to the appellate court or the Supreme Court. The majority of people on the appellate court first were on the selection committee. Basically, it means they’re selecting from themselves.
Democratic elections, of course, don’t remove politics from judicial selection any more than “merit” schemes. But at least the politics occurs out in the open for everyone to see, rather than being hidden behind closed doors. Most importantly, as Mr. Griffith reminds us:
In a democracy, what sets us apart is that we are able to choose our own leaders, not have them chosen for us. That is not what many other countries enjoy.
West Virginia Legislator Gets It Half Right
September 22, 2008
West Virginia Democratic State Senator Jeff Kessler has got “merit” selection all figured out:
I’m inclined to believe that election is the best way. Judicial selection by (merit) committee is still politics – just a narrower group.
But Sen. Kessler, who chairs the state legislature’s Senate Judiciary Committee, is pushing for public financing of judicial races to end the “perception that [judges] are beholden to donors.”
A couple of points: First, public financing, like “merit” selection, is just another way to keep the people at arm’s length from the judicial selection process because it limits their ability to express their democratic preferences. Second, the “perception” about being “beholden to donors” is true for all public servants – so why is it OK for people to assume their congressmen, governors and state senators are “beholden”…but not judges? Third, the best way to end this “perception” that judges can’t be impartial is for judges to stop acting like politicians who routinely overturn elected legislatures to impose their own social, economic or political views and go back to their real job of interpreting the law.
Opponents of Democratic Judicial Elections Keep Pushing The Rock Up The Hill In PA
September 19, 2008
For about 20 years, a group called Pennsylvanians for Modern Courts (PMC) has been lobbying to abolish democratic judicial elections in the state by revoking the right of 8.3 million Pennsylvania voters to decide who will sit on their courts and turn the job over to a 14-member committee dominated by lawyers.
Proponents of this scheme gathered in Harrisburg this week to announce their intention to reintroduce their plan in the next legislative session set to begin in January. Perhaps cognizant that two decades of failure suggests some modification in their approach, PMC’s Shira Goodman conceded that the bill might be revised to allow a few more “public members” to join the lawyers on the panel.
Of course, Pennsylvania already has a procedure to ensure that the voice of every “public member” can be heard: It’s called an election.
Temple University Law Professor Marina Angel cut through the fog of political posturing and goo-gooing that PMC and others use to justify the anti-democratic nature of their plan:
This is a split between people who believe in the franchise and those that don’t.
Or, a split between people who believe voters are qualified to decide who will control one-third of Pennsylvania’s state government and those who don’t.
Professor Angel also skewered the proposal for exempting any judicial nominating panel from complying with the state’s Right-to-Know Law. Ms. Goodman said the proposed commission needs to meet in secret “to make sure judicial applicants are comfortable with the process,” but she allowed that some meetings might be opened to the public. Since when did it become necessary to see to it that our public servants “are comfortable with the process” by which we choose them? I’m sure there are many days when Barack Obama and John McCain aren’t “comfortable with the process” of getting elected president and would gladly turn the decision over to some secret tribunal controlled by their favorite special interest groups. But that’s not how democracies select their leaders.