Support the People, Not the Elites in Pennsylvania
July 13, 2010
In a Pittsburgh Post-Gazette op-ed, Professor John Kennedy of La Salle University invites us to “jump down the rabbit hole … and imagine a world where U.S. Supreme Court justices” are elected democratically. (Hat tip to JudgesOnMerit.) He then goes on to catalogue the alleged horrors of democracy – too much campaign cash, nasty TV ads, etc.
But here’s a more interesting mental exercise. Why don’t we “jump down the rabbit hole” and consider what would happen if U.S. Supreme Court justices were chosen by “merit” selection, as Professor Kennedy proposes.
A commission dominated by special interest groups such as the American Association of Trial Lawyers, Big Labor and other elites would gather behind closed doors to compile a list of “acceptable” nominees. A couple of “public” seats on the commission would be permitted on the commission to give the appearance of public participation, but the panel, by law, would be controlled by elites.
Despite the fact that he was elected by all the people, President Obama would not be free to choose his own nominee, but would be “required” to nominate a candidate “exclusively from the list” of acceptable nominees. If President Obama believes there are better candidates outside the elite list, tough luck.
Voters would be kept on the sidelines, except for the occasional “retention” election – which gives only the illusion of democratic accountability considering that, historically, 99% of judges are “retained.”
Professor Kennedy makes much of the fact that a recent poll shows three-quarters of Pennsylvanians believe “campaign contributions have some influence on judicial decisions.” He conveniently ignores the fact that this same poll shows that three-quarters of Pennsylvanians believe “merit” selection won’t take politics out of judicial selection and could even make the selection of judges “more political” (Question 36) and nearly 7 out of 10 say “merit” selection transfers the power to choose judges from voters to “politicians and trial lawyers.” (Question 37).
“Merit” selection proponents like Professor Kennedy suggest that the “appearance of improper influence hovers over the court” because lawyers often contribute to judicial candidates. But if the goal is to ensure lawyers aren’t too influential, wouldn’t it be better not to allow ANY lawyers on the “merit” selection commission? Why should lawyers have guaranteed seats at the table when it comes to picking our public servants on the bench, but not doctors or teachers or plumbers or police officers?
Nothing against lawyers, of course – my wife is one. But in a democracy, no profession deserves a privileged place over any others. Think about it for a second: What if I proposed that a commission controlled by CPAs be given the power to choose judges? Editorial boards would howl in protest and professors would write articles ridiculing the idea – and rightly so. But somehow when JDs are given the job, we’re all supposed to just clam up and be thankful?
The real problem is that “the people” often don’t pick what elites – like editorial writers and professors – believe are the right kind of judges. Which is why, despite all their protests to the contrary, “merit” selection systems always marginalize the role of ordinary citizens.