More on the “Perception” Problem
March 9, 2010
Yesterday I responded to an item by the folks over at JudgesOnMerit (”Why Perception Matters“). A closer reading turns up a number of other claims in the post that are false or misleading. Here’s a quick debunking:
First, JudgesonMerit claims that under the plan the group supports, judges would be screened “by a non-partisan citizen panel representing the diverse spectrum of interests in the community.” Actually, under the plan the group supports, at least half of the panel members must be lawyers. So much for representing “the diverse spectrum of interests.”
Second, the group claims “the public … will have the ultimate say in retention elections.” Actually, retention elections do nothing to ensure public accountability, but only assure a lifetime appointment to the bench. Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were re-elected. Since “merit” selection was adopted in Tennessee, only one judge has ever lost a retention election.
Third, JudgesonMerit attempts to invoke the Founders, as if they would support “merit” selection. Actually, in Federalist 39, James Madison wrote that it is “essential” that a democratic government “be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” It seems pretty obvious that “merit” selection – where judges are chosen not by the great body of society (the people) but by an inconsiderable proportion of it (a small panel dominated by lawyers accountable to no one) is exactly the type of system the Founders wanted to avoid.
Posted by Dan Pero in the categories: Judicial Elections
2 Responses to “More on the “Perception” Problem”
[...] American Courthouse: More on the ?Perception? Problem Dan Pero – 3/9/2010 [...]
By whatever method judges are selected, there are pro and cons in each and we should always strive to improve. But actually this is a red herring, because by whatever method a judge gets the office, on the bench and all the POWER that comes with it, once on the bench - there are virtually no true mechanisms of accountability.
Judges have tremendous discretion - and then unconstitutionally gave themselves ABSOLUTE JUDICIAL IMMUNITY [AJI] - which insanely covers corrupt & malicious acts. (Stump v. Sparkman, 435 U.S. 349 (1978).) Review Article III (and the rest of the Constitution - a document of express & limited powers) - there is NOTHING giving immunity fo judges. Moreover, judges giving judges imunnity violates the doctrine of separation of powers. (Bradley v. Fisher, 80 U.S. 335 (1872) and Randall V. Brigham, 74 U.S. 523 (1868).) This inverts the sovereignty of We The People, and elevates the government (here the judiciary), over above and beyond the People, making Us the servants and government the master.
Further, too many judges are former prosecutors and most prosecutors seek to become judges, thus there is a closed fraternity, and they almost always each look the other way when the other commits misconduct, or worse. Once in a while they are compelled by embarassment - not duty - to come down on a colleague. And even then they usually are quite soft.
Additonally, impeachment is DEAD and Congress has abandoned its oversight (checks & balances) of the judiciary, demonstrated by the federal judicial councils (made up entirely of judges) who are supposed to investigate complaints about judicial misconduct, yet year-in-year-out across the nation, almost 100% of complaints are dismissed without any discipline being imposed. (See http://www.judgewatch.org , left side bar, under Published Pieces - “Without Merit: The Empty Promise of Judicial Discipline” and “The Critque of the Bryer Committee Report”.) Several recent examples of long term bad boy judges: include Samule Kent, Robert Porteous, ____ Nottingham & Manuel Real.
Here are three (3) simple examples that show how out ot touch the judiciary , oversight and true checks & balances are.
First, the “Cash for Kids” scandal out of Wilkes-Barre, PA (Luzerne County), where juvenile judge Ciavarella & Conahan who ordered children into incarceration on very minor offenses in exchange for birbes. 6,500 cases have been reversed & vacated. Clearly the product of the despicable & dastradly doctrine of AJI. Where is Justice O’Connor and the “merits selection” crowd speaking out on this horrendous scandal? SILENT.
Second, attorney Richard I. Fine (70) has been rotting away in the LA County Jail for over 1 year, on a coercive contempt charge, in part for exposing that LA County Superior court judges for decades were receiving unconstitutional - ILLEGAL - double benefit payments from LA County (Sturgeon v. LA County, et.al. (2008) 167 Cal.App.4th 630, rev. denied). The judge - David P. Yaffe who ordered find to jail got (and still gets) those double benefits payments to a tune of now ~ $1 Million, did it in the case of Marin Strand Colony, II v. LA County, et,al., - where his benfactor LA County is a party! Can you say CONFLICT? Further, some of the judges that earlier got those payments are now on the appellate court and Supreme Court of California, and the federal courts - where Fine has sought habeas corpus relief; all of Fine attempts have been denied! Additionally, Mr. Fine has been disbarred for purported acts of “moral turptitude” - when actually all he did was challenge rulings of judges that he contended were wrong. How is that MORAL TURPITUDE? Mr. Fine had no prior instances of being disciplined. Where is Justice O’Connor and the “merits selection” crowd speaking out on this terrible injustice? SILENT.
Third, although America is/was supposed to be a representative Republic, we now have MORE judges than representatives! The Judiciary has leapfrogged over the Legislature, which was placed 1st in the Constitution for a reason. The People are tired of the Rule of Judges replacing the Rule of Law. Where is Justice O’Connor and the “merits selection” crowd speaking out on this issue? SILENT. And instead seeking to expand the unbridled POWER of the judiciary.