Update on Kansas
October 1, 2008
The Shawnee (KS) Dispatch has a good update on a November ballot initiative in Johnson County that would end “merit” selection of judges and put the power back in the hands of voters through democratic elections. The article features a lively and generally balanced back-and-forth between election supporter Tim Golba of the Kansas Judicial Review of Johnson County and “merit” supporter Greg Musil of Johnson Countians for Justice.
Mr. Golba says the current system gives lawyers the upper hand in deciding who sits on the court, while Mr. Musil argues that “merit” selection has worked so well over the past 34 years that not a single Johnson County judge has ever been voted out in a retention election. Mr. Musil also draws what I believe is a mistaken analogy between the “merit” system in Johnson County – where a 14-member panel dominated by lawyers decides who will sit on the bench – and the federal system, where the President’s choice is confirmed by the Senate. If federal judges were selected the same way as they are in Johnson County, the President would be forced to choose from a list of nominees put together by the heads of the American Bar Association, the American Trial Lawyers Association and other legal special interests.
Mr. Musil compounds this mistake, in my opinion, by suggesting that our Founding Fathers would have supporter “merit” selection in order to keep the judiciary independent. But the Founders recognized the need to balance the virtue of independence with the need to make sure judges are still accountable to the people, even if that accountability is indirect. As James Madison wrote in Federalist 39, America’s democratic government would be:
“ … a government which derives all its powers directly or indirectly from the great body of the people … It is essential (Madison’s emphasis) to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it … It is sufficient (Madison’s emphasis) for such a government, that the persons administering it be appointed, either directly or indirectly, by the people … Even judges [under the Constitution] with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves.”
James Madison clearly intended for all our public servants, including judges, to be chosen by “the great body of the people” and not by “an inconsiderable proportion, or a favored class of it.” Could there be a better description of “merit” selection than an “inconsiderable portion” (i.e. 14 people) led by “a favored class (i.e. lawyers) making the judicial selection decisions rather than “the great body of the people” (i.e. voters)?