Misguided Responses By “Merit” Selection Supporters
October 31, 2008
Both Judges on Merit and Gavel Grab have posts attacking yesterday’s Wall Street Journal editorial highlighting the high stakes in Tuesday’s state judicial elections. The Journal is perfectly capable of defending itself – but the attacks themselves raise a couple interesting points.
The “problem with elections,” Judges on Merit suggests, is that “support by certain interest groups is more important [in selecting judges] than qualifications, skill and experience.” Let’s leave aside the insulting inference that Pennsylvania citizens are not competent enough to base their judicial votes on “qualifications, skill and experience.” What’s Judges on Merit’s solution to the problem of interest group influence in elections? Give one interest group — lawyers – the dominant voice in choosing who should sit on the bench!
Under the plan they support for Pennsylvania, by law at least 7 members of the new 14-member judicial nominating commission must be lawyers. When that commission meets behind closed doors to pick judges, does anyone really believe that Joseph the lawyer won’t have more influence than Joe the Plumber?
Gavel Grab – the blog for Justice at Stake – rolls out its usual public opinion polls which purport to show that 75% Americans are concerned that campaign contributions “could” impact court decisions. But a poll released last July by the American Justice Partnership Foundation found that 75% of Americans believe state Supreme Court Justices should be elected by the people. And a recent Harris Poll for the American Bar Association showed that 55% of Americans preferred judicial elections for judges, compared to just 19% who supported some form of “merit” selection.
How could Americans overwhelmingly support a system of choosing judges (elections) when they’re concerned about the potential influence of campaign contributions? Maybe Americans believe campaign contributions “could” impact all officeholders, not just judges. Or maybe Americans believe that democratic elections is the best way to hold judges accountable if they act corruptly and base their decisions on campaign dollars. Either way, Americans overwhelmingly oppose giving up their right to vote for state judges and overwhelmingly prefer elections over “merit” selection.
But that doesn’t matter. Because Gavel Grab says Justice at Stake doesn’t support “merit” selection anyway and hotly denies the Journal’s accusation that it has “pushed hard” for this system. Huh?
It only takes about two mouse clicks on Justice at Stake’s website to find that one method the group proposes for “improving judicial campaigns” is – you guessed it – “merit-based selection of judges.” Judges on Merit is the blog for Pennsylvanians for Modern Courts (PMC), which has been pushing to replace judicial elections with “merit” selection for 20 years. PMC’s latest annual report proudly lists the organizations that support its efforts to promote “merit” selection including – drumroll please – Justice at Stake! In 2006, Justice at Stake published a report called “The New Politics of Judicial Elections” which included a section called “Defense of Merit Selection.” On page 41, the Justice at Stake brags about several “jointly hosted luncheons” they sponsored for local leaders “to help them understand how merit/retention systems work …”
Apparently pimping “merit” selection on your website; supporting groups that promote it in states across the country; publishing reports that defend it; and, sponsoring luncheons to educate people about its benefits doesn’t qualify as “push[ing] hard.” I guess it depends on your definition of the word “push” – or your definition of the word “hard.”
At the end of its post, Gavel Grab solemnly intones that “public trust in the courts is essential to our democracy.” I couldn’t agree more. But there’s another element that’s just as “essential to our democracy.” It’s called voting.
“Superlawyers” To The Rescue: The Fight Over How To Choose Judges In Minnesota
October 30, 2008
The Minnesota Lawyer Blog gives us a ring-side seat to an exciting fight, carried out in the op-ed pages of the Minneapolis Star Tribune, between Charles Lundberg, a fellow of the American Academy of Appellate Lawyers, and Paul Woods, a product manager at a publishing firm, over how best to vote for judges.
Sure sounds like a mismatch…but I smell an upset.
Mr. Lundberg instructs voters, who he says basically know “very little” about which appellate candidate to chose from, to “consult” someone who is “well-qualified to help you evaluate the judges.” Who does he have in mind? Well, another appellate lawyer – like himself for instance.
If you’re so lowly that you’re not lucky enough to travel in the company of appellate lawyers, have no fear. In that case, Mr. Lundberg instructs, “vote for the incumbent.” Why? Because “more than 100 of the top appellate lawyers in Minnesota have evaluated the candidates [for an appellate slot] and publicized their conclusions. These lawyers have both the unique qualifications and the professional responsibility to candidly assess sitting appellate judges.” (Unlike you, of course.) This august group of legal grandees “include members of the state bar appellate practice section, the amicus curiae committees of both the plaintiffs and defense bar, the American Academy of Appellate Lawyers, and attorneys designated appellate law ‘SuperLawyers’ by Minnesota Law & Politics.” They all support the incumbent because “generally speaking, appellate judges learn and improve and get better at their job over time.” If an appellate judge is good enough for them, he/she should be good enough for you.
But these blows did not faze Mr. Woods, who called the arguments “self-serving and insulting to the intelligence of Minnesota voters.” He ridicules Mr. Lundberg’s “weighty legal rationale” that incumbent appellate judges “generally speaking” get better at their jobs over time. Mr. Woods writes:
“Doh! Doesn’t everyone, generally speaking? If this is the case, why hold any official up for election at all? Just think of how much better our governor, congressional members and president would be if we just let them keep their jobs and bring to bear all the experience they’ve gained in office?
“So the real practice being advocated by Lundberg is to have the governor choose our judges, who then become incumbents, who we are then told to vote for by the likes of Lundberg and the clan of appellate lawyers, because they are…incumbents.”
Mr. Woods feels the citizens of Minnesota are perfectly capable of doing their homework and figuring out who to vote for – even without the help of Mr. Lundberg and his fellow “SuperLawyers.”
“We elect governors, don’t we? Why not judges too?”
The winner by knockout: Paul Woods.
Judicial Elections or Potato Chips?
October 30, 2008
As expected, our friends at Judges on Merit (or as I like to call them, Judges for No Accountability) are hyperventilating again about the impact of campaign contributions on judicial races – the answer to which, in their mind, is to get rid of elections altogether. It’s bad enough that Michigan Supreme Court candidates have raised $2 million, but third parties have also chipped in $2 million for a total of $4 million – about what Barack Obama spent on his 30 minute infomercial last night.
The blog quotes a spokesman from the Michigan Campaign Finance Network concerning the “peril” that contributions have “considerable potential for conflict of interests and it certainly creates a troubling appearance.” No evidence of any actual impropriety can be found, but so what? Better to strip people of their constitutional right to elect judges and turn the job over to a “merit” commission, just to be safe.
But wait a minute. Wouldn’t putting a single special interest group (lawyers) in control of the entire judicial selection process also create a “troubling appearance?” And is $4 million for a campaign really scandalous enough to justify abolishing elections? In his column today, George Will reports that the $5.3 billion spent on the presidential and congressional elections in the 2008 campaign cycle is a billion less than Americans will spend this year on potato chips.
Will Judges on Merit come out against democratic presidential and congressional elections next? Or just against potato chips?
High Stakes In Upcoming Judicial Elections
October 30, 2008
A Wall Street Journal editorial highlights the high stakes in next week’s judicial elections in Alabama, Michigan, and Ohio. In each state:
“The trial bar senses an opening in what may be a Democratic year and is pouring cash into the races to reverse what has become a nationwide legal reform tide.”
In addition to investing millions to turn back legal reform, the Journal also reports what readers of American Courthouse already know: the trial bar and their political allies on the left are also mounting a campaign to seize control of the courts by abolishing democratic judicial elections altogether.
“The idea is to expand “merit selection,” whereby judges are chosen by trial lawyer-dominated bar associations and legal groups instead of by voters….The expansion of merit selection is being pushed hard by the Brennan Center, Justice at Stake and other legal groups funded by wealthy liberals like George Soros.
“It’s no mystery that merit selection is the left’s method of choice. Some three-quarters of all merit selection committee slots are held by trial lawyers, according to data collected by the Federalist Society. What began as an effort to keep politics out of judicial selection has become a wholesale transfer of power from voters to the legal guild. Elections have their own problems, but at least they require the legal elite to be accountable to voters. Voters on Tuesday will have a chance to put the trial bar in its place.”
“They Don’t Think We’re Smart Enough To Elect Our Judges”
October 29, 2008
Another Kansas City Star article updates the campaign over the ballot initiative in bellwether Johnson County to scrap “merit” selection and restore democratic judicial elections. As it stands today, a 14-member commission dominated by lawyers screens applicants and sends a list of three hand-picked nominees to the governor, who is required by law to select one of the commission’s choices. While initial meetings with judicial candidates are open to the public, voters have no opportunity to question nominees or offer any input into the process.
Election opponents believe keeping judges at arm’s length from the people they serve is a good idea. Voters can learn everything they need to know “about judges’ qualifications and work on the bench through evaluations released by the Kansas Commission on Judicial Performance.” So one committee controlled by a special interest group (lawyers) gets to pick judges and another committee controlled by the same special interest group (lawyers) gets to tell voters what to think about judges.
“Merit” selection supporters say this system installs judges with “merit” on the bench – but what they really mean is that only certain people (like lawyers) have enough “merit” to make the decision over who controls one-third of our government. Charlene Bredemeier, a supporter of judicial elections, sums up this attitude pretty accurately:
“They [merit selection proponents] don’t think we’re smart enough to elect our judges.”
No Merit for Minnesota
October 29, 2008
A Minneapolis Star Tribune article has a good update on the upcoming judicial races in Minnesota.
Judicial candidates have found many innovative ways to inform voters about the judicial philosophies – including YouTube videos – without compromising their independence. The Star Tribune reports that judicial campaigns this year are mostly “low-cost, low-key and low-profile affairs.” Kind of makes you wonder why some top Minnesota lawyers and outside special interest groups are lobbying to take judicial selection away from voters and hand it over to a tiny committee dominated by lawyers. Do they really think people don’t have the “insight and sophistication” to pick judges? Or do they just want to give legal special interests more power in deciding who sits on the bench?
Two More Trial Lawyers Join A Rogues Gallery Of Sleaze
October 27, 2008
Trial lawyers like to pretend they’re fighting to protect the little guy, but the case of two disgraced Kentucky trial lawyers demonstrates yet again that the real motivation behind most mega-torts is plain old greed. William Gallion and Shirley Allen Cunningham, Jr. were sentenced last week to the legal profession’s equivalent of life without parole after the Kentucky Supreme Court ordered them disbarred, with no possibility of reinstatement, reports the Lexington Herald-Leader (Hat Tip: Overlawyered.)
Federal charges are still pending against the two for pocketing “more than $104 million out of the $200 million settlement that should have gone to more than 440 former clients” in the massive fen-phen diet drug class action. In the disbarment hearing, attorneys Gallion and Cunningham admitted that they:
… failed to inform their clients in writing about fee arrangements in the fen-phen settlement; failed to tell clients that they were seeking fees greater than contingency fee arrangements provided; failed to advise clients about the total amount of the settlement; and failed to get clients’ consent to place $20 million in settlement money in a charitable fund that the lawyers controlled.
In addition to being disbarred and facing federal charges, the two have already lost a case brought by their former clients in state court, in which they were ordered to repay $42 million to their clients. To satisfy these and other claims, ESPN.com reports that the 20 percent stake Gallion and Cunningham own in 2007 Horse of the Year Curlin will be auctioned off on November 5.
It’s been a tough year or so for the trial bar’s leading lights. Securities class action kingpins Bill Lerach and Melvyn Weiss traded in their pinstripes for prison stripes after pleading guilty to paying kickbacks to front-men plaintiffs…and tobacco litigation titan Dickie Scruggs is also serving time after admitting he bribed a judge.
Missouri Update: Citizens Fighting To Protect The Right To Vote For Judges In One Missouri County
October 24, 2008
A Springfield, MO News-Leader article has an update on efforts by a group of Greene County, MO citizens to fight back against a November ballot initiative that would revoke their right to vote for local judges. The initiative – “Question 1” – would abolish democratic judicial elections and turn the job of selecting judges over to a five-member commission controlled by lawyers.
Last week, Missouri Gov. Matt Blunt came out against “Question 1.” This week, a citizens group called “Greene Countians Against Question 1” launched a television ad criticizing the initiative. The group’s treasurer, Larry Russell, said a lawyer-dominated panel might reverse tort reforms and shift the courts in an anti-business direction – a concern echoed by Gov. Blunt.
The similar commission system is used to select Missouri Supreme Court and Court of Appeals judges, but has been criticized as secretive and highly partisan. According to Mr. Russell, 20 of the last 21 Supreme Court nominees have either been trial lawyers, Democrats or both.
Greene County attorney Chip Sheppard says the group’s claims are “misleading” because voters would still be allowed to participate in retention elections. But who’s really being misleading here? Judges running in retention elections are routinely returned to office in percentages that would make Venezuelan dictator Hugo Chavez “greene” with envy. In Tennessee, for example, 145 out of 146 judges have been retained since the state took away the right to vote for judges in 1971.
Mr. Sheppard suggests voters are merely “losing their right to an uninformed vote” and “gaining the right to an informed vote” because, under the new system, local lawyers would rate each judge’s performance and release these ratings before the retention election. Translation: Mr. Sheppard believes Greene County voters are too stupid to make up their own minds about who should control one-third of their county government and everyone would be better off if lawyers not only made judicial selections themselves, but told people how to vote in the phony Potemkin elections he supports.
More Support For Taylor In Michigan
October 23, 2008
The Grand Rapids Press has a strong editorial endorsing the re-election of Michigan Supreme Court Chief Justice Clifford Taylor. (full disclosure: my wife, Colleen, is managing Chief Justice Taylor’s campaign). Some highlights:
Chief Justice Clifford Taylor has brought a sharp legal mind and just as sharp an accountant’s pencil to his work on the Michigan Supreme Court. Those are solid reasons to return him to the bench for another eight years.
… Mr. Taylor does articulate a sound philosophy, namely that the court should not write – or rewrite – the law, a role reserved for other branches of government.
[Mr. Taylor’s opponent Judge Diane Hathaway] is not well qualified to assume a role on the high court.
Both the Detroit News and the Detroit Free Press have also endorsed Chief Justice Taylor.
Americans Want To Elect Their Judges
October 23, 2008
Be careful what you poll for, you just might have to publicize it.
The American Bar Association has lately been pushing a proposal to allow a disinterested, non-partisan professional organization to run a “merit selection” board that would essentially fulfill the Constitutional responsibility of the President of the United States in naming judges. What is the name of this august organization willing to take on this awesome responsibility?
Why, it just happens to be the American Bar Association.
To bolster their overall merit-selection position for the states as well as the federal government, ABA hired the Harris Poll to conduct a nationwide survey of 2,315 U.S. adults. The results were fascinating.
A plurality of Americans, 43%, say state judges should be selected in non-partisan elections. Twelve percent believe partisan elections are correct. That’s a 55% majority in favor of judicial elections. Only 19% believed in some form of “merit selection.” This concurs with a poll the American Justice Partnership Foundation (AJPF) released this summer showing a large majority, 75%, in favor of electing state Supreme Court judges. (I’m the President of AJPF.) AJPF’s number of those who favor merit selection—21%—is very close to the ABA’s finding, validating both polls.