The Use and Abuse of America’s Founders in Wisconsin
May 6, 2010
The Wisconsin State Journal – with an assist from former U.S. Supreme Court Justice Sandra Day O’Connor – tries to drag America’s Founders onto the side of “merit” selection. James Madison must be rolling over in his grave.
As I’ve pointed out many times before, in Federalist 39, James Madison wrote:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of society, not from an inconsiderable proportion, or favored class of it.”
Under “merit selection,” judges are chosen NOT by “the great body of society” (i.e. the people). Instead, they are selected by a tiny committee – in other words, “an inconsiderable proportion” of society.
Justice O’Connor, who is speaking in Madison, WI today, and the State Journal want us to believe these tiny “merit” selection committees are “dominated” by ordinary folks like you and me – by “lay people – not lawyers.” At least that’s what she says it’s like in her home state of Arizona.
Indeed, Arizona’s 16-member judicial nominating panel includes 10 lay members and 6 attorneys. But why should one profession merit (pardon the pun) 38% of the seats on the judicial commission? According to the State Bar of Arizona, there are about 13,000 active attorneys in the state – but there are more than 17,000 practicing physicians. Why are lawyers more heavily represented than doctors – or plumbers for that matter? Unless, of course, you truly believe that lawyers are a “favored class.”
This talk about Arizona is just political sleight of hand anyway. As Justice O’Connor surely knows, Arizona isn’t really representative of what “merit” selection looks like in most states. “Merit” selection is also known as the Missouri Plan, since Missouri was the first state to adopt it and is held up as the model. In Missouri, four of the seven members of the “merit” board have ties to the Missouri trial lawyers association. Not just lawyers, but trial lawyers. Now that’s a “favored class.”
The State Journal also wants us to believe that the federal system of appointing judges created by the Founders is somehow equivalent to “merit” selection on the state level. This is nonsense. To continue Madison’s quote from Federalist 39:
“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 the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
Under the federal system Madison helped devise, judges are appointed by a president who is accountable to the people and confirmed by Senators who are accountable to the people. Public opinion about everything from the proper role of judges to the judicial philosophy that should guide judicial decisions is so important that presidential and Senate candidates devote entire speeches and policy papers to assure voters their wishes will be taken into account.
Judges who reach the bench under “merit” selection, on the other hand, are chosen by an unelected, unaccountable commission, not by elected officials – meaning they are the choice neither “directly or indirectly” of the people, as Madison believed was necessary.
Next time the State Journal wants to shill for “merit” selection, it should leave America’s Founders out of it. We look forward to hearing from the voice of the people over at The Capital Times.
Posted by Dan Pero in the categories: Judicial Elections, O'Connor Judicial Selection Initiative, Wisconsin
4 Responses to “The Use and Abuse of America’s Founders in Wisconsin”
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I just wanted to make a few comments concerning the Arizona process. First, the merit selection committee does not actually appoint judges. The committee makes recommendations to the governor. Normally there are multiple names and the governor (an elected official) has the opportunity to choose. Second, judges in the two largest counties which are chosen by merit selection are also subject to retention votes. The public decides whether it wants to throw a judge out based on his or her performance. This is a rare occurance. Each judge is subject to a Judicial Performance Review. The JPR Commission oversees this process. It is made up of 18 public members, 6 lawyer members and 6 judge members. Surveys to assess the judges performance are given to jurors, witnesses, litigants, people who represent themselves in court, attorneys and court staff. Each judge is assigned a conference team which meets with him or her to discuss the findings and suggest areas of improvement. (My wife was a public member of one three person team and said it was a good experience for both her, and the judge.) Finally, there is a public recommendation about whether a specific judge should be retained.
Unless I’m mistaken, only a single judge has been voted out of office. One could argue that is because the system is stacked in their favor. On the other hand, you could argue that the checks and balances have created a system of selection and oversight that has avoided the need to throw out judges. Are all Arizona judges perfect? You can guess that answer. But we could argue that the process of selection and oversight goes much farther than someone walking into a ballot box and voting for a name they only know because they drove past a sign.
Rick DeBruhl
Chief Communictions Officer
State Bar of Arizona
Many thanks for your comments.
Of course you’re right that the governor makes the official “appointment” – but he/she is required to pick from the nominees chosen by the merit selection committee, so the real choice belongs to the committee, not the governor.
Unlike the federal system, where the people can hold the president (and individual senators) accountable for judicial choices, Arizona’s governor, even though elected as you point out, is not really responsible because he/she is bound by the commission’s selections.
You’re also quite correct that seeing a judge lose a retention election is a “rare occurrence” – about as rare as a sighting of Halley’s comet. According to one study, of the 6,309 judges who ran for retention between 1964 and 2006, more than 99 percent were returned to the bench. You mention the JPR commission oversees a performance review process and recommends to the public how they should vote. I wonder: How often has the commission recommended that a judge it selected NOT be retained?
I have to say, I’m always surprised at how casually “merit” selection proponents demean the ability of their fellow citizens to select judges democratically – in your case implying voters make their decisions based only on what signs they drove past. While many of Arizona’s 2.2 million-plus registered voters may never be sophisticated enough to gain entry into an organization as august as the State Bar of Arizona, in their democratic right to determine which public servants will govern them, they are your equal and the equal of every attorney in the state.
[...] it comes to picking the judges before whom they will argue their cases? As I pointed out in a previous post, Arizona is home to about 13,000 practicing attorneys, but more than 17,000 practicing [...]