“No Accountability”
February 26, 2010
The “merit” selection campaign is run by sophisticated political operatives, whose public messages are likely tested through polling and honed by focus groups. That’s why they always claim “merit” selection is merely about bringing “fairness” and “impartiality” to our courts. Who could be against that?
But every now and then, someone blurts out the truth and gives the game away. Today’s exhibit is a little item I stumbled onto from H. Lee Sarokin, a retired federal judge. After some throat-clearing about how “unseemly” and “demeaning” it is for judges to have to campaign, Judge Sarokin gets down to business:
“I do not mean to suggest that elected judges are necessarily unqualified or corrupt, but rather that merit selection is far superior to selection by election, since the voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge.” [my emphasis]
Most “merit” selection proponents understandably shy away from such blunt “voters are dunces” arguments. They know that asking citizens to strip themselves of their right to vote for their public servants on the bench is a pretty steep hill to climb, so they offer up meaningless fig leaf of retention elections so voters can labor under the illusion they’re still involved. Judge Sarokin is having none of it:
“As I have said previously, there is a suggestion that elections should be retained because they make judges accountable to the people, but there should be no such accountability.” [my emphasis]
Judge Sarokin proclaims that judges are only “accountable to the Constitution and the rule of law” – and I’ve heard other “merit” selection lobbyists make similar comments. This sounds so noble and high-minded that I’m embarrassed to confess I don’t have the slightest idea what it means.
I’ve seen the Constitution at the National Archives in Washington, DC. There is truly something awe-inspiring about seeing thousands of people quietly lining up every day to take just a quick glimpse at this faded parchment, then march solemnly on with a renewed appreciation for the genius of our Founders. But by what mechanism can this miraculous document hold a judge “accountable?”
Every top government official takes an oath to support the Constitution: the president, House members, Senators, judges – and in states, the governor, legislature and judges. They all swear a duty to uphold it, but someone has to determine whether they have fulfilled that responsibility. In a democracy, that someone is the voters. Saying judges should not be accountable to the people, but only to what their own conscience suggests the Constitution demands is the same as saying they are accountable to no one.
Bill Moyers Comes Out Against the First Amendment
February 26, 2010
That great ultra-liberal windbag Bill Moyers slammed the U.S. Supreme Court’s Citizens United decision, which that found that corporations have First Amendment rights to free speech and that Congress cannot use its power to muzzle speech it finds inconvenient during election time. (I didn’t watch the Bill Moyers Journal broadcast on PBS myself, but Billionaires Against Elections - aka Justice at Stake - summarized the lowlights on Gavel Grab.)
Moyers frets that the ruling “greatly expands corporate power over our politics” and “that corporate muscle just got a big hypodermic full of steroids.” Between bouts of such bloviating, he enlisted legal scholar/analyst/pooh-bah Jeffrey Toobin, who said the answer to this decision was - you guessed it - “merit” selection:
“When you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.”
Toobin offered no evidence to support this condemnation of democracy, or if he did, the folks who want to Grab the Gavel from the American people chose not to report it.
The truth is, Citizens United will probably not alter corporate spending on campaigns all that dramatically. Corporations have always been able to donate. The only difference now is these donations can be used to expressly advocate for a particular candidate, rather than going right up to the edge with issue ads. Any increase in corporate political spending is likely to be dwarfed by the trial bar and trade unions – two groups whose future prosperity is so dependent on their ability to pull the levers of government power.
In any event, Moyers himself had no concrete proof of any vast corporate conspiracy, other than a mysterious reference to a “very rich oilman” who paid $300,000 “to get a moment of President Clinton’s ear.” Did this fat cat get anything in return? I guess we’ll have to wait until the next episode.
Obama/Democrats Bows to the Trial Bar…Again
February 23, 2010
President Obama has said he’s willing to work with Republicans on “a comprehensive package to deal with” medical liability reform. But according to news reports, the new package he unveiled yesterday contains not a peep about a reform that even the Congressional Budget Office estimates could cut health care costs by $54 billion.
Throughout the health care debate, the president has never been shy about trashing doctors he believes order up tonsillectomies so they can make more money. He’s also put health insurers in his sights, proposing to put Washington in charge of setting insurance rates. I guess crossing the powerful and generous trial bar ($781 billion in contributions to congressional Democrats since 1990, and yes, that’s billion with a “b”) is a bridge too far.
Lifting the Rock on ACORN
February 19, 2010
Congressman Darrell Issa is out with a blockbuster new report that lifts the rock on ACORN’s corrupt activities and its connection with the powerful Service Employees International Union (SEIU). The report makes four key findings:
- “First, ACORN and SEIU’s illegal agreements, and the crimes committed in furtherance of these agreements, constitute a criminal conspiracy.”
- “Second, there is a pattern, signature or ‘trade secret’ of corruption common to all ACORN affiliates called ‘Muscle for the Money.’”
- “Third, ACORN, as a corporation, is responsible for thousands of fraudulent voter registrations throughout the United States.”
- “Fourth, ACORN contributed to the risky lending that led to the financial collapse.”
The media has mostly ignored Issa’s report, but a summary can be read at Human Events.
“Merit” Selection Setback in Arizona
February 18, 2010
“Merit” selection suffered a setback earlier this week – right in the backyard of former U.S. Supreme Court Justice Sandra Day O’Connor who has become the most high-profile lobbyist for this system which empowers legal special interest groups to select judges.
Under a proposal passed by Arizona’s Senate Judiciary Committee on Monday, voters could have the opportunity to scrap “merit” selection and replace it with a federal-type system where judges are appointed by the governor with confirmation by the Senate.
Although Arizona’s “merit” commission is less top-heavy with lawyers than panels in other states, Senator Jack Harper suggested the system has been skewed toward keeping conservative judges off the bench: “There’s no chance that this committee is ever going to be middle of the road.”
The system has also completely insulated Arizona’s top judges from public accountability. Since “merit” selection was adopted in 1974, only two judges have lost their seats in retention elections.
The proposal still has a long way to go before it reaches voters – and you can expect special interest groups led by Justice at Stake and Justice O’Connor to fight tooth and nail against it. Still, it’s refreshing to see someone standing for the not-so-radical idea that judges – like every other public official – should be accountable to the people they serve.
Thus Spoke Justice O’Connor
February 10, 2010
Former U.S. Supreme Court Justice Sandra Day O’Connor has been a longtime public servant and for that she deserves the thanks of a grateful nation. But her crusade to abolish voter participation in judicial selection and turn the process of picking judges over to a cabal of elites is verging on crack-pottery.
Her latest outburst came in Michigan where she appeared at a forum sponsored by Wayne State University Law School and the Michigan chapter of the American Board of Trial Advocates. Among the honored guests were Democratic party hack Mark Brewer, Michigan’s deeply politicized unions, and the state’s powerful trial bar – the same crowd that tried unsuccessfully to hijack Michigan’s Constitution by unseating elected judges and gerrymandering legislative districts to suit their ideological ends.
It’s sad that Justice O’Connor would lend her considerable prestige for use as cover to a gathering of such rank political partisans. Even so, her arguments deserve to be taken seriously, so let’s have a look.
“There has to be one safe place in our system of government where decisions are based on the law and people can be fair and impartial,” said Justice O’Connor.
Does she really mean this? Does she not know that the elected officials of Michigan’s Executive and Legislative branches are all bound by exactly the same oath as Michigan’s Judiciary – the oath to “support the Constitution of the United States and the constitution of this state?” Is she really implying that Governor Granholm and Michigan legislators are operating outside the law? Or that their duty to Michigan’s Constitution is somehow less important?
“In order for judges to dispense law without prejudice, they need to be certain they won’t suffer political retribution,” said Justice O’Connor.
So are all elected judges in the U.S. – who presumably face possible “political retribution” every time they go before the voters – unable to “dispense law without prejudice?” Do we really want any public servant in a democratic society to be “certain” that his or her actions are so completely insulated from public accountability that he or she can’t be removed from office?
“Being right has to be more important than being popular,” said Justice O’Connor.
Very true, Justice O’Connor. But who gets to decide what is “right?” Here we get to the heart of the matter. Justice O’Connor and her allies in the “merit” selection campaign believe elites should be making this decision, not voters. They want citizens to give up their right to vote for judges and trust that the whole affair will be better handled by elites, by which they basically mean elite lawyers.
I don’t doubt Justice O’Connor’s sincerity, but unfortunately her comrades in arms at that Michigan symposium are not so public-spirited. They have strongly partisan, deeply ideological agendas. For many, the ends truly justify the means – even if the means require doing away with a basic democratic right like voting. And if a distinguished jurist like Sandra Day O’Connor is willing to help them further their political ends, they’re happy to oblige her.
More Democracy, Not Less In Wisconsin
February 8, 2010
A Madison, Wisconsin Capital Times editorial zings their brethren at the State Journal for its “misguided crusade” for an “unelected judiciary.” The whole thing is must reading, but a few points stand out. Among them:
“There is no evidence of significant support on the part of citizens or their elected representatives for the idea of creating a so-called ‘merit selection’ system, which would give political and legal elites the power to pick judges …”
This is an absolutely critical insight. The entire “merit” selection movement is not a grassroots uprising, but a manufactured campaign financed by the George Soros Institute for an Unaccountable Judiciary (aka Justice at Stake). The game plan is by now depressingly familiar: Commission a poll that suggests people are concerned about the influence of campaign contributions in judicial races. Then make the preposterous leap to the conclusion that elites, not ordinary people, ought to have the power to pick judges. And hope no one notices.
Of course, people are concerned about the influence of campaign cash on every elected office – from dog-catcher to president. Channeling progressive patron saint Robert La Follette, the Capital Times writes “the cure for what ails democracy is more democracy.”
That’s just another way of saying … when lawyers choose, the people lose.
Illinois Supreme Court Turns Back Tort Reform
February 5, 2010
In a disappointing and tortured decision, the Illinois Supreme Court threw out limits on noneconomic damages in medical liability cases yesterday, overturning bipartisan legislation passed in 2005 that enjoyed broad public support. Ed Murnane, President of the Illinois Civil Justice League, blasted the court for “siding once again with the trial lawyers” over patients and doctors.
According to American Medical Association President James Rohack (who is quoted in today’s Chicago Tribune), when the Illinois Supreme Court overruled the state’s previous damage cap in 1997:
“Severe problems with patient access to care emerged as the unrestrained excesses of the state’s legal system forced Illinois physicians to limit services, retire early, or move to other states where liability premiums are more stable. Without a cap on noneconomic damages from 1997 to 2005, Chicago physicians saw their liability premiums increase an average of 10 to 12 percent each year. When the cap was reinstated in 2005, premiums for Chicago physicians stabilized and even began to shrink.”
This is the third time the Illinois high court has struck down medical liability limits, demonstrating that it “simply will not be bound by the duly enacted acts of the legislature when certain issues important to its lawyer constituency are at stake,” writes Walter Olson in a post at PointofLaw.com that picks apart the court’s legal analysis.
The Illinois court’s “lawless” decision (Olson) demonstrates beyond any doubt that the best tort reform is getting the right judges on the bench.
Update on Schwarzenegger and Tort Reform
February 5, 2010
As I reported earlier, California Governor Arnold Schwarzenegger has pledged to push for tort reform in this, his final year in the governor’s office.
Veteran California political columnist Dan Walters gives a brief history of the tort wars in the Golden State and reports on the reform package’s chances for success - not great. In Walters words,
Don’t hold your breath. The Legislature’s Democratic majority is symbiotically welded to the trial bar.
Dueling Polls…Or Would A Judge Sell Out for $304?
February 2, 2010
“The public wants cash out of the courtroom – and that could mean pushing out elections, too.” So concludes an article in the Texas Tribune, citing as evidence a poll conducted by Justice at Stake which found that 84% of Americans believe judges should not hear cases from major contributors and 74% believe campaign contributions have some impact on a judge’s decisions.
But the leap the Texas Tribune makes from these manufactured survey findings to the conclusion that Texas should abolish democratic judicial elections is a clanking non sequitur.
A 2008 poll by the American Justice Partnership Foundation found that 75% of Americans believe state Supreme Court judges should be elected and only 21% supported so-called “merit” selection. Even a poll released by the staunches of “merit” selection supporters – the American Bar Association – found that only 19% of Americans wanted to turn judicial selection over to “merit” boards.
In that same article, the Texas Tribune publishes contributions by employees at top law firms between 2000 and 2009. Over that time period, 1,103 individual contributions were made at an average of $304. Even Texas Supreme Court Chief Justice Wallace Jefferson – a staunch “merit’ selection supporter – had to admit that “most judges don’t sit down at night and go over the list as to who contributed and who has not contributed to their campaign.”
The real problem, then, isn’t the fact that judges are changing their votes to please contributors, because Chief Justice Jefferson agrees they aren’t – at least not for $304. Instead, all we’re really dealing with is a problem of “public perception.”
If the public is wrong in their perception – as Justice Jefferson seems to believe – then isn’t the answer to better educate the public about the virtues of its judges, rather than punishing the public by eliminating their role in judicial selection altogether?