Peeking Into The Secret Rooms Where Judges Are Selected
January 30, 2009
Some proponents of “merit” selection argue that ordinary voters lack the sophisticated training and legal expertise to properly evaluate judicial candidates. This is why we’re supposed to rest easy when commissioners – typically appointed by state bars and other legal special interest groups – retire behind closed doors to selflessly wade through all the technical legal documentation that is beyond our understanding.
A recently published report by the Brennan Center provides us a rare peek into those rarified chambers. The Brennan Center interviewed commissioners in different states about how one factor – diversity – plays into their selection of nominees. Here are some of the comments:
“[i]f there are women [in the pool], I’m going to make sure that a woman shows up on the [short] list.” Commissioner Strain (AZ)
“[i]f we don’t have enough diversity among anticipated applicants for a particular vacancy, I may suggest to the Commissioners that they reach out to lawyers they know from diverse backgrounds (who are otherwise qualified) to ask them to apply for a particular vacancy.” Commissioner Sachs (MD)
“[w]e don’t have a scorecard, but diversity is considered along the way. Each commissioner puts whatever weight on the qualities they want.” Commissioner Carlotti (RI)
each Commissioner in Florida is “on their own” to do what they feel is right. Anonymous Commissioner (FL)
As a Commission, he said that they “put the word out” to attract more female applicants. Commissioner Diament (NH)
What strikes me upon reading these comments is how ordinary they are – and how closely they resemble the insights you’d get if you asked a group of folks gathered at the corner diner. Far from applying the distilled wisdom that can only be gained by years of complex study of the law, commissioners just seem to “wing it” when it comes to one important factor in choosing suitable judicial nominees.
Which raises an interesting question. If commissioners really aren’t making decisions based on technical competence alone – and if they are basing their decisions on their own subjective opinions, what exactly is the rationale for keeping ordinary voters locked out of the process? Considering that a variety of factors completely unrelated to a prospective judge’s legal expertise can and should be part of the consideration for deciding who should sit on the bench, isn’t it better in a democracy for those decisions to be made by the people rather than a chosen few?
How “Merit” Selection Restricts Diversity On State Courts
January 29, 2009
Florida State Senator Tony Hill – a Democrat who serves as minority whip – weighs in with an oped in the Tallahassee Democrat on the troubling lack of diversity in judicial candidates selected by Florida’s judicial nominating commissions. As Sen. Hill points out, Gov. Charlie Crist has twice sent back lists from the nominating commission for the 5th District Court of Appeals and recently rejected the Supreme Court nominating commissions list of nominees – all because commissioners failed to deliver a slate of candidates that reflected Florida’s diversity. As Sen. Hill wrote:
“Well-qualified minorities are applying to these open judicial posts, but few are making it past the supposedly apolitical nominating commissions, leaving one to wonder what the commissioners’ motivations may be. If the governor himself continually calls for and asks for more diversity in his choices, why isn’t he being listened to?”
Of course, since the commissioners’ meetings are conducted in secret, with absolutely no public accountability and no record of the proceedings, their “motivations” will forever remain a mystery, not just to the people of Florida, but to state political leaders like Sen. Hill. Sen. Hill makes an impassioned plea to the commissioners set to meet tomorrow to compile a list of nominees to fill another Supreme Court vacancy to send Gov. Crist candidates that are “a better selection of the people of Florida.”
It’s unfortunate that an honorable public servant like Sen. Hill has to turn to the oped pages to influence the secret selectors of Florida’s high court judges, but I understand his plight.
Here’s another idea: Why not let the commission continue its secret meetings and allow it to send the governor a list of recommended nominees reflecting the combined wisdom of this august body; but permit the governor to nominate any candidate from the vast pool of Florida residents qualified to serve on the courts? That way Gov. Crist would be accountable because the final selection was his and his alone. If Sen. Hill or any other legislator had questions about the governor’s “motivations” or worried about the lack of diversity on the courts, he could take his case directly to the people, who could express their preferences at the ballot box.
Surely this is a better way to ensure that Florida’s rich diversity is reflected on the courts, rather than pleading with the all-powerful commissioners before they disappear behind closed doors.
Hopes For A Return To Democratic Elections In Tennessee
January 28, 2009
Last year, the Tennessee legislature chose not to reauthorize the so-called Tennessee Plan for choosing judges, placing the system on course to sunset in mid-2009 unless state lawmakers reach agreement to revive the plan. Under the current system, a small committee dominated by legal special interest groups meets in secret to decide who will sit on the bench. If the plan lapses, voters will see their right to elect judges restored.
Yesterday’s Nashville City Paper has a good update on the debate, including a fascinating back-and-forth between Senator Mark Norris, the Republican Majority Leader, and Daniel Clayton, who runs the Tennessee Trial Lawyers Association. According to Sen. Norris, the issue is clear:
“The Constitution of Tennessee means what it says. Article VI, Sec. 3 states, ‘[t]he Judges of the Supreme Court shall be elected by the qualified voters of the State’….If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”
Clayton responds with the standard argument that elections “turn our appellate judges into politicians” and denies that special interest groups – like his – wield undue influence over the judicial selection process.
“The current plan allows input from all of the major bar association groups across the state.”
I guess this “nobody here but us lawyers” stance is supposed to be reassuring, but it merely reveals how insular Tennessee’s judicial selection process has become. No one would dream of giving, say, auto mechanics or dentists the preeminent role in picking Tennessee’s judges. Since when did lawyers become so omnipotent that they deserve to decide who will control 1/3rd of the state government?
The standard retort from Clayton and his trial lawyer cronies is that voters still have the ultimate say over judges through retention elections. They expect us to be grateful that the lawyers allow us in the room after they’ve made all the important decisions. It’s like a gang of realtors getting together and deciding what house you’re going to live in, then telling you, “don’t worry, in eight years we’ll let you can decide whether you want to keep living there or not.”
Besides, retention elections are a sham. As Vanderbilt Law Professor Brian Fitzpatrick has pointed out, 145 out of the 146 judges who have stood for “retention” have been retained. Maybe Tennessee has just been blessed with supremely talented jurists over the past 30 years. Or maybe retention elections are just rubber stamps that don’t mean anything.
Stay posted as the debate heats up when the Tennessee legislature reconvenes on February 9.
A Conclusion Unsupported By The Data: A Professional Look At The AJS/Washington State Poll
January 28, 2009
As readers know, I found the recent survey of Washington state voters and their attitudes about judicial elections vs. “merit” selection a little squirrely. The fact that the survey was funded by the American Judicature Society and George Soros’ Open Society Institute certainly raised a red flag. Both groups have spent millions in an organized campaign aimed at abolishing a voter’s right to elect state judges.
To help sort through the 23-page report, I asked Dr. Whit Ayres to take a look. Dr. Ayres is nationally respected pollster whose clients have included presidential candidates, Senators, Member of Congress, governors and major corporations. Roll Call recently called the Ayres McHenry & Associates polling firm “one of the best in the nation.” Here’s his analysis.
GUEST POST BY DR. WHIT AYERS
The Washington State University survey of the state’s voters regarding presumed support for commission appointment of state judges contains an intriguing analysis of public opinion data.
The mail survey methodology, while unusual in this day and age, was professionally accomplished, and defensible given the complexity of the questions presented. Consequently I have no quarrel with the results the survey produced.
But I take strong exception to the conclusions that the researchers purport to base on those results. For the results support a conclusion that is diametrically opposed to the one reached in their analysis. The researchers conclude that Washington voters are less committed to electing their judges than commonly thought. But their findings show that the exact opposite is the case.
First, the survey establishes that Washington voters hold an overwhelmingly positive view of electing judges, and a negative view of having judges appointed. By a margin of 68 to 9 percent, voters hold a positive rather than a negative view of “non-partisan elections,” and by 64 to 10 percent they view “having contested elections” positively. On the other hand, having the “Governor filling vacancies” is viewed positively by 27 percent and negatively by 31 percent.
Respondents were told that, in the current system of judicial selection in Washington, 40 percent of judges reached the bench by non-partisan election, and 60 percent reached the bench after being appointed by the Governor. 26 percent of voters thought that system was good or very good, while 35 percent thought that system was bad or very bad. The primary reasons why voters thought the current system is bad are that “(a) substantial number of respondents commented that too many judges are appointed by the Governor and that such appointments tend to be inappropriately partisan and political. A large number of respondents also voiced concern that they were frustrated by the large number of uncontested elections and the lack of judicial accountability present in the current system.” In other words, it is precisely the large number of appointed judges and the lack of sufficient contested elections that leads voters to conclude that the current system is bad.
When asked about a commission system for appointing judges, the survey indicated a preference for a commission system over the current system. The results above show the reason: voters are frustrated that the current system does not include enough contested elections. Indeed, when asked further about a commission system, the respondents zeroed in on the lack of contested elections as the key drawback: 32 percent thought “not having contested elections” was positive, while 36 percent thought it was negative.
Consequently I do not understand how the researchers can conclude: “(I)t has been a widely held belief among people who have followed judicial politics in the Evergreen State that “Washingtonians would never give up their right to elect their judges”. Given the evidence of citizen interest in and support for a merit selection process documented in this survey, it may be time to set aside this long-established belief and adopt a stance more open to the possibility of change in how the state’s judges ought to be selected.”
No, it is not time to set aside this long-established belief. It is time to read the data in this study that show Washington voters have an overwhelmingly positive view of electing judges in contested elections, they would like more contested judicial elections, and they do not support any system that would mean more appointments and fewer contested elections.
– Whit Ayres
Will Michigan Justices Side With Taxpayers?
January 27, 2009
Last fall, Michigan’s Supreme Court voted to close several “convenience” offices used by justices who lived outside the Lansing area. It was a responsible step toward fiscal sanity and a welcome show of solidarity with Michigan’s long-suffering taxpayers.
After all, taxpayers had just recently sprung for the new $126 million Hall of Justice – an investment of taxpayer resources that ought to be enough to house seven justices in relative luxury. Plus, the state faces a combined budget deficit of $920 million, according to the most recent figures from Governor Granholm’s office, and closing second offices could save an estimated $500,000 per year.
But Michigan taxpayers shouldn’t count their savings just yet.
The vote was decided by only a 4-3 margin. But Chief Justice Clifford Taylor, who shepherded the measure through the Court, was defeated in his race for re-election, leaving Justice Robert Young to carry on the fight. Taylor’s replacement, Diane Hathaway, has been mum on how she would vote if the motion comes up for a re-vote. Her official stance when asked if she was willing to give up her Detroit “convenience” office: “No comment.”
Leading the charge against fiscal responsibility is Justice Betty Weaver, who is clinging to her $60,000+ per year digs in Traverse City just as ferociously as she tried to keep her taxpayer-funded car last year.
Message for Justice Weaver and Justice Hathaway: This is not a hard call.
Last year alone, 81,000 Michigan residents lost their jobs and the University of Michigan estimates another 132,000 workers will join the ranks of the unemployed over the next two years. Thousands of these and others in our state have lost their homes to foreclosure. Is it really asking so much of our high court judges to give up this perk of office at a time when so many in our state are suffering?
I knew justice was blind, but does it have to be dumb too?
Beyond $$$: What We’ve Lost Because Of Our Lawsuit Culture
January 26, 2009
Many of us in the legal reform community often become so focused on the actual dollar cost of our out-of-control litigation system we often lose sight of the broader picture of how our lawsuit-happy culture diminishes freedom and undermines the can-do spirit that made America great.
While the tremendous costs of litigation are real and important, it’s necessary sometimes to take a step back and look at the bigger picture – and this is just what Philip K. Howard has done with his latest book, Life Without Lawyers. In a Wall Street Journal article today, Howard reminds us how much we’ve really lost because of the “sue-first” mentality that pervades our culture and lays out a path to restore some measure of the freedom that has been taken away. Read the whole piece, but here are some highlights:
The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not “Yes We Can” but “No You Can’t.”
You can’t even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child….Ordinary choices – by teachers, doctors, officials, managers, even volunteers – are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there’s an accident?
A Must Read Article And A Challenge To Justice At Stake
January 26, 2009
University of Kansas School of Law Professor Stephen J. Ware had an important piece in Friday’s Wichita Eagle that devastatingly exposes the insider game of judicial appointments to that state’s Supreme Court and shreds the argument that “merit” selection delivers non-political judicial appointments. The entire op-ed is must reading, but here are some highlights:
Gov. Kathleen Sebelius recently appointed Dan Biles to the Kansas Supreme Court, showing once more what an unusually secretive and clubby process our state uses to select its highest judges.
Biles is the law partner of the Kansas Democratic Party’s chairman, and the governor is, of course, a Democrat. Sebelius said that she and Biles have been friends for more than three decades, and he has made campaign contributions to her.
But the insider dealings don’t end there. Professor Ware goes on to report that Biles is a member in good standing of the Kansas Trial Lawyers Association and that Gov. Sebelius herself was once the state director of the group. Just as troubling, Professor Ware writes:
…is how little the people’s views matter….So if the governor and [state bar] want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.
“Merit” selection proponents claim retention elections preserve public accountability, but Professor Ware rightly points out that these Potemkin elections are a sham:
In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. [my emphasis]
Since Kansas’ judicial nominating commission meets behind closed doors, “there is no public record of who voted which way.”
This secrecy prevents journalists and other citizens from learning about crucial decisions in the selection of our highest judges. In this closed process, a small group of insiders (members of the Kansas bar) have an extremely high level of control.
The Kansas bar defends this with the claim that the bar keeps judicial selection from being “political.” But when the process results in the governor appointing one of her own friends and campaign contributors, you have to wonder what kind of politics goes on behind closed doors or at trial lawyers’ cocktail parties.
Politics are inevitable when it comes to picking judges. The question is whether the politics will remain largely confined to the bar or become more open to the public and its elected representatives.
Justice at Stake claims its goal is to get politics out of the judicial selection process. While I don’t expect him to agree with every point in this article, perhaps Bert Brandenburg, Justice at Stake’s executive director, will join me in agreeing that, at least in this case, Kansas’ “merit” selection system has failed to deliver on its promise of non-political judicial appointments and should be revised to reduce the role of a single special interest group – the state bar. How about it Bert?
Stirrings of Democracy in Indiana
January 26, 2009
Came across a blogger in Indiana alerting folks to a bill recently introduced in the state legislature by Democrat Rep. Craig Fry to give voters a voice in pickings justices on the state’s high court.
Perhaps the biggest change suggested in the legislation is that the justices would be elected by the general public to a 6-year term. The General Assembly would divide Indiana into three districts, and one justice would be elected by the voters of those districts. Two justices would be elected by all voters statewide.
Deciphering Polls About “Merit” Selection And Judicial Elections
January 22, 2009
The American Judicature Society and the Washington State Judicial Selection Coalition have just released the results of a Fall 2008 survey of “citizen perceptions about the way in which the state’s judges are selected.” (Thanks to Shira Goodman at JudgesOnMerit for her post alerting me to the survey.)
There’s a lot to chew on in the 23-page report, including several pages of throat-clearing designed to convince us that the survey provided “an accurate, non-leading description of how judges actually are selected” and that the portrayals of merit selection and judicial elections were “factually accurate and presented in a neutral manner.” Here are a few initial observations:
- The survey was funded by vociferous opponents of democratic judicial elections, suggesting the project was highly biased from the start.
The report acknowledges on pg. 2 that “primary funding” was provided by the American Judicature Society (which opposes democratic elections) and the Open Society Institute (which is spending millions to promote “merit” selection). Additional funding was provided by the Washington State Bar Association, which would have a prominent role in any commission-based system – a role which was never revealed to survey participants.
- The survey descriptions of Washington’s current system of contested elections and a competing commission-based system were neither fair nor neutral.
The description of Washington’s judicial election system includes an extremely leading “however” sentence, included primarily to persuade voters they currently have little impact over who sits on the bench. The description concludes with the observation that in 2008, “84% of judicial elections are uncontested.” Of course, the authors never mention that under “merit” selection, 100% of judicial elections would be uncontested.
The authors tell voters that a “merit” selection commission is “bipartisan,” “broad-based” and “made up of lawyers and non-lawyers from across the state.” The best that can be said about this description is that it creates a highly misleading impression of how judicial nominating commissions really work. No mention is made of the powerful role that legal special interest groups – such as state bar associations and state trial lawyers associations – typically have in appointing commissioners and controlling who sits on the bench.
This description closes with a reassuring sentence designed solely to persuade voters that “retention elections” would still give them the last word on whether a judge remains in office. Unlike the judicial election description, no information is provided informing voters than under retention elections, judges are virtually guaranteed reelection. (In Tennessee, according to Vanderbilt University Law Professor Brian Fitzpatrick, 145 out of the 146 judges who have stood for retention election have been returned to office.)
- Despite these highly biased and leading descriptions, Washington voters still express surprisingly strong support for democratic elections and have a high regard for the judges chosen under this system.
On pg. 11 of the report, we learn that even after reading the highly biased and misleading descriptions of judicial elections and “merit” selection, nearly 7 out of 10 (68%) respondents have a favorable view of non-partisan elections, such as Washington currently uses, and nearly 2 out of 3 (64%) have a positive view of contested elections. Voters with a positive view about advertising by judicial candidates outweigh those with a negative view by more than 10 percentage points.
Buried on pg. 21, the authors grudgingly report that 65% of respondents believe that judges chosen under the current election system are “qualified” and nearly 3 out of 5 say Washington’s current judges are “honest and trustworthy” and “fair and impartial.” Only 16% describe Washington’s elected or appointed judges as being “for sale.”
More to come later as I spend a little more time digesting this report.
Change We Can Believe In?
January 21, 2009
Millions of Americans watched President’s Obama’s gracious inaugural address with a sense of hopefulness that our nation’s political leaders can work together on a bipartisan basis to address the serious economic challenges facing America. But Les Weisbrod – a Texas trial lawyer and president of the American Association for Justice (formerly the American Trial Lawyers Association) – had something else on his mind: $$$$$.
For Weisbrod and the thousands of personal injury lawyers he represents, the Obama Administration means one thing and one thing alone: the chance to sue more companies. According to a report in the Dallas Morning News, Weisbrod was told by none other than House Speaker Nancy Pelosi that Democrats will soon push President Obama to make it easier for trial lawyers to sue drug companies whose products have been reviewed and approved by safety regulators at the Food & Drug Administration.
Next on the trial bar’s agenda – pressing Congress to overturn a 2008 8-1 Supreme Court decision that barred state tort claims against manufacturers of medical devices which have received FDA approval. In that case, the Court wisely decided that medical experts at the FDA were better capable of balancing potential risks and prospective health benefits for patients than non-technical juries inflamed by trial lawyers in state courts.
According to the Morning News, attorneys poured more than $42 million into the Obama presidential campaign. Now we know that, at least as far as Trial Lawyers Inc. is concerned, this quid comes with a quo. Let’s hope that the Obama Administration understands that turning more American companies into targets for the ravenous trial bar is hardly the kind of stimulus our economy needs.