8.7 Million vs. 14 (or 6)
May 6, 2010
The folks at JudgesOnMerit – another anti-election group financed in part by hedge fund billionaire George Soros – turned me on to a pro-“merit” selection editorial from a Pennsylvania paper called the Herald-Standard. The editors endorse legislation that would scrap the voting rights of Pennsylvania’s more than 8.7 million registered voters and turn the job of selecting judges over to a 14-member panel.
“Merit” panels are often criticized – including here on American Courthouse – as a mechanism for elites to elbow out the people when it comes to choosing judges – so, perhaps in deference to this criticism, the new Pennsylvania proposal comes with a twist. Eight of the 14 members will be chosen by the governor and legislators – presumably drawn from the usual collection of legal special interests like the state trial lawyers association. But six – a minority to be sure, but still … six – will be “ordinary citizens picked by lottery.”
Bingo! It’s your lucky day – you get to pick a judge!
I guess Pennsylvania voters are supposed to be grateful for the concession. But what about the other 8,699,994 who don’t get “picked by lottery?” Well, the problem with them, according to the Herald-Standard, is they don’t have the information they need to make an “informed decision” – which presumably means Keystone State voters have been making uninformed decisions for the last 150 years or so.
This is yet another variation, albeit milder, on the “people are too stupid to pick judges” argument that has sunk “merit” selection proposals in Pennsylvania for the past two decades.
But wait, the Herald-Standard contends, it’s not really the voters’ fault. Judges are “legally prohibited” from giving voters the information they need to be “informed.” Case closed, we’re led to believe.
Fortunately, we have a more “informed” view of the matter – from the U.S. Supreme Court. In 2002, the majority ruled in Republican Party of Minnesota v. White that barring a judicial candidate from “announc[ing] his or her views on disputed legal or political issues” violates the First Amendment. As Justice Scalia wrote for the majority:
“There is an obvious tension between Minnesota’s Constitution, which requires judicial elections, and the announce clause, which places most subjects of interest to the voters off limits. The First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what the elections are about.”
The Herald-Standard repeats another canard of the “merit” selection campaign – namely that “merit’ selection is equivalent to the federal system, where the president picks justices and judges with the advice and consent of the Senate.
The crucial difference, of course, is that President Obama – or any other president – is not bound by the slate presented by some “merit” selection board controlled by legal special interest groups. He (or someday she) can pick any qualified candidate he wishes.
The disparity may seem small, but it is crucial: Under the federal system, the people can hold President Obama and individual Senators accountable for the judicial picks they make – in fact, presidential and Senate candidates routinely campaign specifically on the kind of judges they would appoint. Under “merit” selection, voters have no way of holding the nominating panel accountable – except for the six lucky souls “picked by lottery.”
If the Herald-Standard really wants to replicate the federal system, it should call for making any “merit” panel advisory only. Let the governor appoint whomever he/she likes, with the consent of the Senate, and then let the people hold him/her accountable for those choices. Or, better yet, just let 8.7 million decide at the ballot box.
Posted by Dan Pero in the categories: Judicial Elections, Pennsylvania
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